PSGB# P-2023-02995

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Wan

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Environment, Conservation and Parks)

Employer

BEFORE

Jayashree Sengupta

Vice Chair

FOR THE COMPLAINANT

Rudolf Wan

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

Written Submissions on April 12, 2024, April 26, 2024, and May 3, 2024.

Decision

1This decision deals with the Employer’s preliminary objection to the Board’s jurisdiction to hear this matter on the basis that the Complainant, Rudolf Wan, had retired prior to filing his grievance and was, therefore, no longer a public servant at the time that he grieved.

Background

2The Complainant was a Manager, Air Approvals in the Employer’s Environmental Permissions Branch. Following an extended absence from work, he returned to the workplace in August 2021, and began working 2 days per week. Some of his people-management responsibilities were given to another employee and Mr. Wan was assigned to do project-work for 2 days per week. He received Short Term Sickness Plan (“STSP”) payments for the remaining 3 days of the week.

3Following receipt of an updated medical in March 2023 that stated that Mr. Wan could not work for more than 2 days per week, and that he needed 3 days off per week to recover from the 2 days of work, the Employer informed him in May 2023 that it could no longer accommodate him in his position, that his medical information indicated that he was unable to perform the duties of the position of Manager, Air Approvals and that he would be placed in the Employer’s Health Reassignment Program, during which time he would receive STSP payments. He was placed on STSP as of May 29, 2023.

4The Complainant began the Health Reassignment Program process, which included signing consents to undergo an Independent Medical Examination (an “IME”) and file review. As he was also close to exhausting his STSP credits, he was sent a Long-Term Income Protection (“LTIP”) package by Human Resources for which he applied.

5The Complainant exhausted his STSP credits on October 10, 2023, and began an approved unpaid medical leave. His LTIP application was denied in late November 2023, following which the Complainant resubmitted the IME consent forms. On December 21, 2023, an updated consent to an Independent Psychiatric Assessment was sought from the Complainant. He did not provide that consent.

6On January 3, 2024, the Complainant gave the Employer a Notice of Proposal setting out his concerns. He received an email from the Employer on January 8, 2024, suggesting that he continue to work with his Director to resolve issues and a Deputy Minister or Delegate meeting was not held.

7On January 4, 2023, the Complainant informed the Employer of his intention to retire effective January 30, 2024. He retired from the Ontario Public Service (“OPS”) on that date.

8His complaint to the PSGB, under s.4(1) of O.Reg 378/07, concerning a working condition or a term of employment was filed on February 5, 2024. In it the Complainant alleges that the Employer failed to accommodate him in accordance with the OPS Disability Accommodation Policy (“DAP”), culminating in a removal from his home position of Manager – Air Approvals. He further alleges that the Employer deliberately drew out the Health Reassignment Program process, resulting in him being cut off from payroll, which then forced him to retire from the OPS for financial reasons before he was ready to do so.

The Parties’ Positions

9The Employer argued that the Board must have statutory authority to adjudicate a complaint as it has no inherent jurisdiction. It submitted that in the present complaint, the Board lacks jurisdiction as the Complainant was no longer a public servant at the time that he filed his complaint on February 5, 2024, as he had retired from the OPS effective January 30, 2024.

10The Employer submitted that the Public Service of Ontario Act, 2006 (“PSOA”) and Ontario Regulation 378/07 (the “Regulation”) contains specific language indicating when a provision applied to former public servants. It pointed to section 56(1) of the PSOA which expressly includes “former public servants”. As well, the Employer argued that section 2(1) of the Regulation uses the term “person” when referring to complaints to the Board by “a person who is aggrieved by his or her dismissal for cause under section 34 of the Act”. However, section 7(1) of the Regulation refers to “public servant” when providing for the filing of a complaint concerning a working condition or term of employment.

11The Employer also relied on the legislative change made in 2007 to assert that the filing of complaints concerning working conditions was restricted by amendments made at that time to “public servants” rather than “persons”. It argued that the Legislature intended that the Board would hear complaints about working conditions from “public servants”, and not from the broader category of “persons” such as former or retired public servants.

12The Employer relied on the Board’s decisions in Burt v. Ontario (MCSCS), 2011 CanLII 2330 (ON PSGB) (O’Neil) and Kettle v. Ontario (MTO), 2015 CanLII 89903 (ON PSGB) (O’Neil) in support of its argument that the Board lacks jurisdiction to consider this complaint.

13The Employer acknowledged that the Board’s decision in Drakos v. Ontario (SolGen), 2023 CanLII 102931 (ON PSGB) (Kuttner) took a different approach to the right of a retired or former public servant to file a complaint concerning a working condition or term of employment. However, it argued that the Drakos decision adopted an interpretation that is not supported as it altered and expanded the definition of public servant to include retirees. The Employer also argued that while the issue was central to the Burt and Kettle decisions, Drakos was dismissed on the basis of the complainant in that case not having met time limits outlined in s.9 and, therefore, is of less persuasive value.

14The Complainant gave his Notice of Proposal to the Employer on January 3, 2024. He did not dispute that he retired effective January 30, 2024, or that he filed this complaint to the Board on February 5, 2024. He reiterated that he believed he had no option but to retire because he was under financial stress that resulted from the Employer’s failure to accommodate him in his employment due to his disability and its actions, inaction and delay in dealing with that issue.

ANALYSIS AND DECISION

Relevant Legislative Provisions

15Sections 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.

Section 32 speaks to appointment by the public service commission to employment by the Crown to work in a Commission public body.

16Section 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.

17Section 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.

18More specifically, section 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

(emphasis added)

19In comparison, section 2(1) of O. Reg 378/07 reads as follows:

2(1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board,

(a) if the person is eligible under sections 5 and 6 to file such a complaint;

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

(c) if the person complies with the filing requirements set out in section 10.

(emphasis added)

20Section 7(1) of the same Regulation deals with restrictions on complaints about a working condition or a term of employment and reads as follows:

7(1) A. public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint.

21RRO 1990, Reg. 977 was the previous regulation governing the PSGB. It was repealed and replaced with the current Regulation in 2007. The iteration of s.4(1) contained in the earlier regulation contained the following language:

34(1) A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance.

(emphasis added)

Conclusion

22I find, for the reasons that follow, that the Board has jurisdiction to consider this complaint.

23This Board is a creature of statute, and its jurisdiction is defined by its enabling legislation. The 2007 amendment of the language in the Regulation defining who is able to file a complaint regarding working conditions or terms was changed from the broader category of persons to the more restricted category of public servants.

24As the Board held in Burt, supra, at paragraph 13:

13. …a “working condition” grievance presupposes a working condition, which means a feature of the work an employee does. Once the grievor retired, he ceased to be an employee, and ceased to have working conditions. Although the legislature has extended certain rights to former public servants, it did not extend the right to grieve their former working conditions.

25The Respondent argues that as a retired or former public servant, the Complainant is not able to bring a complaint under s.4(1) of the Regulation which, unlike s.2(1), is a route reserved for public servants as defined in sections 2 and 32 of the PSOA.

26There is no dispute that the Complainant retired on January 30, 2024, or that he filed this complaint on February 5, 2024. However, it is also relevant, and not in dispute, that he gave the Employer a Notice of Proposal to file a complaint on January 3, 2024.

27Section 4(1) requires that a public servant be eligible under sections 5 and 7 to file a complaint, that they give notice of proposal to file a complaint in accordance with section 8 and that they comply with the filing requirements under section 10.

28The Complainant was “appointed by the Public Service Commission under subsection 32(1) or (2) of the Act to employment by the Crown”, as described in s.5(1) of the Regulation.

29Turning to s.7 of the Regulation, I note that the language in s.7(1) speaks to a public servant being “eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint”.

30The reference to a public servant’s eligibility to file a complaint under s.7 makes reference to continuous employment for at least six months before the deadline for giving notice of their proposal to file the complaint.

31In the present circumstances, the relevant consideration to satisfy s.4(1)(a) and s.7(1) is whether the Complainant was eligible to file the complaint when he gave his Notice of Proposal to file a complaint in accordance with s.8. This notice was given to the Employer on January 3, 2024. On that date, there is no dispute that he was a public servant who had been employed continuously for more than six months.

32Having established his eligibility to file a working terms and conditions complaint as a public servant on January 3, 2024, paragraphs (b) and (c) of s.4(1) and sections 9 and 10 required that he observe the timelines for expiry of the dispute resolution period before filing his complaint with the Board. The Complainant complied with that requirement and, within 14 days following expiry of the dispute resolution period, filed a complaint with the Board on February 5, 2024.

33The Complainant’s eligibility as a public servant filing a working terms and conditions complaint was established under s.7(1) on January 3, 2024. He waited to file his complaint with the Board until the dispute resolution period had expired, as required under the Regulation. The Complainant retired in the intervening period, at which time he ceased to be a public servant.

34In Drakos, the Board referred to s.64(1) of the Legislation Act, 2006 which states that “an Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects”. The decision went on to say that the object of the Regulation is “to give an avenue of relief for public servants who are aggrieved about a working condition or about a term of his or her employment: the right to file a complaint before the Board”.

35A fair, large and liberal interpretation of the relevant sections in the Regulation leads me to conclude that the complaint about working terms and conditions, was initiated on January 3, 2024, while a working condition, or feature of work being done by the Complainant (using the language in Burt) existed. His eligibility to bring this matter to the Board was established at that time. The Complainant’s retirement while waiting for the expiry of the dispute resolution process, mandated by the Regulation, does not render him ineligible to move his complaint to the next stage of the process or remove the Board’s ability to proceed with his complaint.

36Accordingly, the Employer’s jurisdictional objection is dismissed, and the complaint will proceed on its merits. A Case Management Meeting will be scheduled to determine next steps.