PSGB# P-2023-03082

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mahendralingam

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Jayashree Sengupta

Vice Chair

FOR THE COMPLAINANT

Bamini Mahendralingam

FOR THE EMPLOYER

Alana Bujeya Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

May 3, 21 and 31, 2024

Decision

1This decision deals with the Employer’s preliminary objection to the Board considering the merits of this application. The Employer’s position is that the Board lacks jurisdiction to either hear the application or to order the relief sought for two reasons. Firstly, it argues that the complaint was not filed in compliance with the timelines set out in sections 4 and 8 of Ontario Regulation 378/07 (the “Regulation”). Secondly, the Employer argues that the Complainant fails to disclose a prima facie breach by failing to identify an existing term or condition of employment.

2The Complainant’s position is that the application should be heard because she was not aware of the timelines in the Regulation until she met with her manager, and she filed her Notice of Proposal to file a Complaint within 14 days of that meeting. She asserts that her rate of pay is lower than that of a newly hired colleague for discriminatory reasons related to her gender and ethnic origin in breach of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

Background

3The Complainant is an 18-year employee of the Ontario Public Service. She has worked as a Business Administrator at the Toronto South Detention Centre since April 2022. On December 18, 2023, she began a temporary assignment role as Lead, Staff Services at the same facility.

4A newly hired employee started his role replacing her as the Business Administrator on November 27, 2023. The Complainant found out that his annual salary for the Business Administrator role was approximately $14,000 higher than hers on November 28, 2023. She met with her manager on December 5, 2023, at which time she says she became aware that she had 14 days to initiate the complaint process.

5On December 18, 2023, the Complainant sent the Employer a Notice of Proposal indicating that she intended to file a complaint concerning a condition or term of employment, specifically that she was not paid the same rate of pay as an “inexperienced male temporarily hired to backfill (her) without a competition” for discriminatory reasons relating to her gender and ethnic origin.

6On January 18, 2024, a meeting was held to discuss the Complainant’s concerns. She subsequently received a decision from the Employer dated February 13, 2024, in which the Employer replied to the Complainant’s Notice of Proposal, denying her complaint and reiterating that it had determined that there had been no violation of any term or condition of her employment.

7The complaint to the PSGB filed on February 21, 2024, outlined the Complainant’s grievances and sought that her salary be amended to the higher rate being paid to her colleague and that the salary adjustment be backdated to April 2022 when she began working as a Business Administrator.

The Parties’ Positions

8The Employer argues that the Board must have statutory authority to adjudicate a complaint as it has no inherent jurisdiction, relying on Burt v. Ontario (MCSCS), 2011 CanLII 2330 (ON PSGB) (O’Neil).

9The Employer argues that the complaint is untimely and that the Complainant did not file her Notice of Proposal within 14 days of becoming aware of a breach of an existing term or condition and should, therefore, be dismissed for lack of jurisdiction.

10It further submits that in the present complaint, the Board lacks jurisdiction as the complaint does not disclose the existence of a prima facie breach that would lead to the remedy sought.

11The Employer argues the complaint must show an existing term or condition of employment, a breach by the employer of that term or condition of the employment contract and a connection between the breach and the remedy requested. Wickham-Johnson v Ontario (Solicitor General), 2021 CanLII 37119 (ON PSGB) (Kuttner).

12It points out that the Board “has consistently declined to entertain grievances where the Board is being asked to review the level of compensation or classification” and that this is exactly such a grievance. Garratt v Ontario (Ministry of Health and Long-Term Care) 2005 CanLII 53194 (ON PSGB) (O’Neil) at page 7.

13The Employer argues that there is no term or condition of the Complainant’s employment that entitles her to a higher rate of pay and that a difference in salary between her and the colleague alone is not enough to identify a term or condition of employment. The remedial request made by the Complainant amounts to a request that the Board establish a new term or condition of employment rather than enforcing an existing one.

14Finally, the Employer argues that the complaint does not disclose a prima facie case of discrimination. While it does not dispute the Complainant’s membership in Code protected groups, it argues there is no evidence that the Complainant was subjected to adverse treatment or that the enumerated Code grounds were a factor in any adverse treatment.

15The Complainant argues that the Employer failed to follow its own policy that employees be paid equitably, considering factors such as skills and job-related experience. She states that a business case had been made by her manager at the time she took on the role of Business Administrator, but it had been denied. Despite her experience, a less qualified male was hired to backfill her position during her temporary absence at a significantly higher rate of pay. She reiterates that this amounts to discrimination contrary to the Code on the basis of gender and ethnic origin.

16She also argues that she was unaware of the timelines contained in the Regulation because she is new to the PSGB process and was not properly informed of her obligation to file within 14 days of becoming aware of the breach of a term or condition.

ANALYSIS AND DECISION

Relevant Legislative Provisions

17Part 1, sections 2 and 32 of the PSOA define who is considered a public servant. Section 2 reads as follows:

2 For the purposes of this Act, the following are public servants:

1. Every person employed under Part III.

2. The Secretary of the Cabinet.

3. Every deputy minister.

4. Every employee of a public body.

5. Every person appointed by the Lieutenant Governor of a minister to a public body.

Part 3, section 32 speaks to appointment by the public service commission to employment by the Crown to work in a Commission public body.

18Part 2, section 22 of the PSOA sets out the powers, duties and functions of the PSGB:

22 The Public Service Grievance Board may exercise the powers and shall perform the duties and functions assigned to it under this or any other Act.

19Section 5(1) of the Regulation addresses the question of eligibility generally while subsections (2) and (3) set out exceptions. Section 5(1) is reproduced below:

5(1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32(1) or (2) of the Act to employment by the Crown.

20Section 4(1) of the Regulation provides the following about the filing of a complaint about a working condition or a term of employment:

4(1) Subject to subsection (2), a public servant who is aggrieved about a condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) If the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) If the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) If the public servant complies with the filing requirements set out in section 10.

21Section 8(1) and 8(4) of the Regulation set out to whom the notice is to be provided and the timeline for providing a notice of proposal to file a complaint:

8(1) A person who proposes to file a complaint shall give notice of proposal to the following person or entity:

1. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

2. A complainant who, at the material time, worked in a Commission or public body shall give the notice to the chair of the Public Service Commission.

8(4) The notice must be given within the following period:

1. For a complaint about dismissal for cause, within 14 days after the complaint receives notice of the dismissal.

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.

Conclusion

22I find, for the reasons that follow, that the Board does not have the jurisdiction to consider this complaint because the mandatory timelines for initiating the complaint outlined in section 8 of the Regulation were not met. Having found the Board lacks jurisdiction to hear this matter, it is not necessary for me to address the alternate arguments raised by the Employer.

23This Board is a creature of statute, and its jurisdiction is defined by its enabling legislation. Burt v. Ontario (Community Safety and Correctional Services), 2011 CanLII 23300 (ON PSGB) (O’Neil).

24The Board has held that a complainant is not eligible to file a complaint unless the strict timelines outlined in the Regulation are met, failing which the Board does not have authority to hear the complaint.

25The complaint must be dismissed on the basis that it fails to meet the timelines for filing a complaint. Sections 8(1)1 and 8(4)3 of the Regulation set out the time frames for initiating the process.

26The Complainant acknowledges that she became aware of the different rate of pay that gave rise to this complaint on November 28, 2023. She says she met with her manager on December 5, 2023, and was told she had 14 days to file the Notice of Proposal to file a complaint. The Notice of Proposal to file a complaint was sent to the Deputy Minister on December 18, 2023.

27The Regulation requires that the notice be given within 14 days of becoming aware of the condition or term of employment giving rise to the complaint, not within 14 days of becoming aware of the ability to file a complaint. Kurzak v. Ontario (Solicitor General), 2021 CanLII 13497 (ON PSGB) (Nairn) and Thomas v. Ontario (Solicitor General), 2022 CanLII 31381 (ON PSGB) (Kuttner).

28In addition, the Board has previously considered whether communications between the parties such as the Complainant’s intervening meeting with her manager impact on the timelines and ruled that it does not. Beauchamp v Ontario (Solicitor General), 2020 CanLII 97315 (ON PSGB) (Nairn) and Morris et al v Ontario (Community Safety and Correctional Services), 2018 CanLII 64318 (ON PSGB) (Nairn).

29The Notice of Proposal was filed outside the 14-day time limit and was 6 days late. The Board has consistently held that the timelines are mandatory, and it lacks the discretion to extend them.

30Accordingly, the Employer’s objection is granted, and the complaint is dismissed.