PSGB# P-2023-01769

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Guhbin

Complainant

• and -

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

Employer

BEFORE

Thomas Kuttner, KC Vice Chair

FOR THE COMPLAINANT

Warren Guhbin

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

December 8, 2023 & January 8, 2024

Decision

Introduction

1This is a Complaint filed before the Board on September 26, 2023, pursuant to subsection 4(1) of O Reg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, S.O. 2006 c. 35, Sch A (“the Act”). In it, the Complainant asserts that for the past three (3) years, he has endured ongoing and targeted harassment from the senior administration at Maplehurst Correctional Complex.

Background

2The Complainant occupies the position of Sergeant at the Maplehurst Correctional Complex (“MCC”). He asserts that the approximately three (3) years of harassment he endured there was orchestrated by the previous Superintendent, Doug Barker and carried out by his senior administration team. This behaviour caused the Complainant a great deal of stress and anguish during Superintendent Barker’s tenure at MCC.

3On March 24, 2023, the Complainant attended at MCC for an overtime shift. However, on that date Superintendent Barker advised the Complainant by telephone, later confirmed by email correspondence, that he did not approve of his attitude and so would no longer allow the Complainant to work overtime. This caused the Complainant a great deal of stress. On the advice of his family doctor, the Complainant submitted a WSIB claim and was off work from March 19, 2023 to June 30, 2023.

4The Complainant reached out to the Central Regional Office, the Assistant Deputy Minister’s Office, the Workplace Discrimination and Harassment Department and the Workplace Safety and Insurance Board for assistance to have the harassment issue resolved, but to no avail. It was only at a meeting with Regional Director, Ms. T. Frankovich that the Complainant received some assistance.

5In his Notice of Proposal, the Complainant proposed by way of relief fifty-two (52) Regular Days Off (“RDO”) in his schedule, paid at one and one-half times his regular rate of pay, and to be moved to the top of his pay grid to compensate for the targeted harassment.

The Employer’s preliminary timeliness objection

The Employer’s submissions

6The Complainant sent his Notice of Proposal to File a Complaint (NPFC) to Deputy Solicitor General, Mario DiTommaso on August 12, 2023. However, Deputy Tommaso is not the Complainant’s Deputy Minister. Karen Ellis, Deputy Solicitor General, Correctional Services, the Deputy Minister for all staff that work within correctional services is the Deputy Minister to whom the NPFC should have been sent. In short, the Complainant sent his NPFC to the wrong Deputy Minister, and the Employer Ministry was unaware of it.

7Accordingly, the requirements set out in the Regulation have not been complied with and cannot be cured, given the timelines of filing an NPFC within 14 days of becoming aware of a term or condition of employment giving rise to the Complaint, as set out in subsection 8(4)(3) of the Regulation.

8Furthermore, even had the Complainant filed the NPFC with the correct Deputy Minister, the harm he is alleging ended on June 30, 2023 far greater than 14 days prior to the filing of the NPFC on August 12, 2023.

9For these reasons, the Employer’s position is that this is an improperly filed Complaint, and therefore the Board has no jurisdiction to adjudicate it.

The Complainant’s Reply submissions

10I made a google search of whom the Deputy Solicitor General was; the response given was Mr. DiTommaso. I was mistaken in believing that Ms. Karen Ellis was the Assistant Deputy Solicitor General. However, by email correspondence sent to Ms. Ellis on March 25, 2023, I detailed the circumstances of the case that I have brought forward and requested assistance from her in resolving these issues prior to getting to this point.

On April 17, 2023, Ms. Ellis responded by email advising that Mr. C. Lacroix or the Regional Director Mr. R. Warikoo would assist me. Both of them advised me to return to talk to Superintendent Barker to resolve these issues on my own, despite numerous pleas for assistance to resolve these matters.

In response to the claim that the harm that I was experiencing had ended on June 30, 2023, I was informed by the WDHP advisor that a conflict resolution meeting would take place prior to my return to the workplace. I returned to the workplace prior to this meeting taking place, after assurances by Toronto Region, Regional Director Ms. T. Frankovich that I would be able to return to work without harassment while the final stages of this process were worked out. The conflict resolution meeting was not held until Friday, September 1, 2023. I don’t feel that this “harm” was resolved prior to this date, and additionally it continues from some Deputies to this date.

Furthermore, the denied overtime was not limited to one incident, but denied overtime “until further notice”. Although there is no guarantee of overtime set out in any term or condition of employment, if overtime is offered to one it must be offered to all in a fair and equitable manner. Superintendent Barker provided written notice to me that I was not permitted to work overtime because he didn’t like my attitude, while still offering overtime to all other employees in my rank.

I am claiming the time off was caused by the malicious targeted behaviour of the Employer. The actions of Mr. Barker was the cause of the absence from the workplace and upon removal of Mr. Barker I returned to the workplace. Had Mr. Barker not been allowed to act in such a negligent and malicious manner this case would never have been brought forward.

Analysis and Decision

11Filing a complaint before the Board is not a simple process. Its requirements are set out in the Regulation, but the inter-relationship between the applicable provisions of the Regulation, are not immediately apparent. They contain mandatory timelines for perfecting the complaint, and indeed the entire complaint process is mandatory.

12The applicable provisions of the Regulation are as set out 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.

8.(1) A person who proposes to file a complaint shall give notice of the 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.

(3) The notice must set out the reasons for the complaint.

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

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.

9.(1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution.

(3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

10.(1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board

(2) The complaint must set out the reasons for the complaint and must include the notice of proposal, if any, to make the complaint and such other information and documents as the Board may specify.

13Here, the Complainant, although intending to file a complaint before the Board, failed in several respects to comply with the filing process set out in the Regulation. First, there is his mistaken belief that Mario DiTommaso, to whom he sent his Notice of Proposal to File a Complaint, was his Deputy Minister, when in fact it was Karen Ellis, Deputy Solicitor General, Correctional Services. The Complainant had emailed Ms. Ellis on March 25, 2023 under the mistaken belief that she was Assistant Deputy Solicitor General, but this was to seek her assistance in resolving “these issues” and cannot be considered a Notice of Proposal to File a Complaint.

14Even if that earlier correspondence were deemed to be the Complainant’s Notice of Proposal, there was no meeting with the Deputy Minister within 30 days after March 25th, and so the time period for dispute resolution would have to be calculated from that date under subsection 9(3) of the Regulation. If that were the case, the filing of the complaint under subsection 10(1) would have to have been within 14 days of the expiry of the dispute resolution period, months before it was filed on September 26, 2023.

15Furthermore, even if the Notice of Proposal to File a Complaint with the Board were deemed to have been properly made to Deputy Minister DiTommaso on August 12, 2023, the precipitating event would have to have been within 14 days of that event, as per section 8(4).3 of the Regulation. However one calculates the precipitating event, whether as being March 25, 2023, or June 30, 2023 when the Complainant’s stress leave came to an end, the purported August 12th Notice of Proposal would have been late filed.

16The Board has held consistently that Notice of Proposal to file a Complaint must be given to the Deputy Minister. Notice to some other ministry manager does not suffice. In Ashdown v Ontario (Community Safety and Correctional Services), 2017 CanLII 16732 (ON PSGB) the Board noted:

Firstly, the Regulation [subsection 8(1).1]requires that notice of proposal to file a complaint be given to the appropriate Deputy Minister. It is not sufficient that information be relayed to an Associate Deputy Minister via another manager. This notice of proposal to file a complaint is the first formal step leading to proceedings before the Board. It is not merely an internal communication between employer and employee. The giving of a timely notice of proposal to file a complaint triggers a formal dispute resolution process, which may lead to a hearing before this Board. [at para. 20].

And see as well Thomas v Ontario (Solicitor General), 2017 CanLII 16732 (ON PSGB).

17The Complainant, having failed to file Notice of Proposal to File a Complaint before the Board to the correct Deputy Minister, the Board has no jurisdiction to entertain this Complaint. In the circumstances, it is not necessary to address the substantive issues raised by the Complainant.

18The preliminary objection of the Employer is sustained. This Complaint is dismissed.