PSGB# P-2023-01791

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Nagra

Complainant

• and -

The Crown in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development)

Employer

BEFORE

Jayashree Sengupta

Vice Chair

FOR THE COMPLAINANT

Harjinder Nagra

FOR THE EMPLOYER

Benjamin Parry Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL SUBMISSIONS

November 21, 2023 December 19, 2023, January 16 and February 13, 2024

Decision

1This decision deals with the Employer’s preliminary objection to the Board considering this application on the basis that this is a complaint about a dismissal without cause in which the Complainant seeks, among other remedies, reinstatement and the Board lacks jurisdiction to either hear it or to order the relief sought.

2The Employer argues that as the Complainant, Mr. Nagra, was dismissed without cause from his employment with the Employer pursuant to s.38(1) of the Public Service of Ontario Act, 2006 (the “PSOA”), a matter that s.4(2) of Ontario Regulation 378/07 (the “Regulation”) states cannot be the subject of a grievance before the Board, the complaint should be dismissed without a hearing.

3The Complainant’s position is that his application is about more than his dismissal. He says he did not have an opportunity to grieve the leave of absence from work or investigation that preceded his dismissal. He asserts that, in addition to his dismissal, the complaint is also about the leave of absence, an improper and unfair investigation into his conduct, bad faith treatment, discrimination, reprisal, breach of confidentiality, harassment, bullying and abuse of power by his superiors, all of which culminated in his dismissal.

Background

4The Complainant began his employment with the Ontario Public Service on May 3, 2021. From August 2022, he worked as a Program Manager in the Industrial Health and Safety Program – York West, part of the Ministry’s Fair, Safe and Healthy Workplaces Division.

5In his Form 1, the Complainant described experiencing incidents of disrespect, harassment and threats of termination from his immediate supervisor, being compelled by the supervisor to impose certain disciplinary measures on staff that reported to him and that his mental health suffered as a result of exposure to traumatizing images and interactions with grieving family members. He states this happened between August 2022 to April 2023.

6The Complainant was placed on a leave of absence with pay on May 1, 2023, pending completion of a workplace investigation into his conduct. Although the leave of absence was to last 20 days, it was extended several times. The ongoing absence from his workplace caused him significant distress and he reported that it had a further negative impact on his mental health. On August 28, 2023, the Complainant’s employment was terminated.

7On September 7, 2023, the Complainant sent the Employer a Notice of Proposal indicating that he intended to file a complaint concerning his “dismissal without cause”. He went on to state that his employment was “erroneously or improperly” terminated, that prior to the termination, he had been placed on an undue and lengthy 4-month leave of absence pending completion of an investigation into complaints about his conduct and that he was denied an opportunity to meaningfully participate in that investigation.

8On September 20, 2023, the Employer replied to the Complainant’s Notice of Proposal, reiterating that he had been dismissed without cause by giving compensation in lieu of reasonable notice, pursuant to s.38(1) of the PSOA, and confirming that the Employer did not intend to reverse the decision.

9The complaint to the PSGB filed on October 1, 2023, outlined the Complainant’s grievances and sought, in addition to reinstatement, a number of additional remedies including relocation costs, salary and benefit continuance, monetary damages and some non-monetary remedies.

The Parties’ Positions

10The Employer argued 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). It submitted that in the present application, the Board lacks jurisdiction as the complaint concerns the Complainant’s dismissal without cause, pursuant to s.38(1) of the PSOA, or matters relating to the dismissal.

11The Employer submitted that the Regulation contains specific language in paragraph 3 of s. 4(2) that “a dismissal without cause under s.38(1) of the PSOA or a matter relating to such a dismissal” cannot be the subject of a grievance before the Board.

12The Employer also asserted that the Board lacks authority to order the requested remedy of reinstatement, pointing to s. 38(2) and s. 40 of the PSOA as support for that proposition. It argued that the Board has long held that it will not take jurisdiction over a matter if it does not have remedial authority, citing Hasted v. Ontario (Community Safety and Social Services), 2016 CanLII 7473 (ON PSGB) (Nairn), Saunders et al v. Ontario (Attorney General), 2015 CanLII 8601 (ON PSGB) (O’Neill), Tighe v. Ontario (Solicitor General), 2020 CanLII 45594 (ON PSGB) (Devins), and Ryan v. Ontario (Community and Social Services) 2015 CanLII 8599 (ON PSGB) (O’Neil).

13Finally, the Employer also identified the following additional objections that it reserved the right to raise in the event that its initial objection was denied:

a. The complaint was filed during the period of dispute resolution, contrary to the process set out in the Regulation;

b. The Complainant cannot file an application regarding working conditions as he was not a public servant at the time that he gave the Employer the Notice of Proposal; and

c. Issues not identified in the Notice of Proposal but included in the Form 1 filed with the Board are not properly before the Board.

14In his response to the Employer’s preliminary objection, the Complainant argued that his application concerns more than the termination of his employment. Despite objecting to the Employer’s submission that it reserved the right to raise additional objections to the Board’s jurisdiction, the Complainant addressed some of those possible arguments in his response. He also indicated that he would file additional submissions if those objections were subsequently raised.

15The Complainant asserted that even if the Board agreed with the Employer’s position that it lacks jurisdiction to consider his dismissal without cause, it should not dismiss his application as he could not raise his complaints about events that preceded the termination of his employment at the time they occurred.

16He characterized those complaints as falling within the categories of workplace discipline and working terms and conditions of employment (sections 3 and 4 of the Regulation).

17The Complainant’s response did not dispute that those complaints were not raised at the time that the events occurred, other than to say that he was unable to do so. He did not speak to the fact that some of the issues did not form part of his Notice of Proposal. Nor did he address the fact that he was not a public servant as defined in the Regulation at the time that he filed his Notice of Proposal. Finally, he did not address the argument that he filed his Form 1 during the dispute resolution period.

ANALYSIS AND DECISION

Relevant Legislative Provisions

18Sections 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.

19Section 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.

20Section 38(1) and (2) and section 40 of the PSOA speak to dismissal without cause and the effect of dismissal:

38(1) The Public Service Commission may without cause dismiss a public servant appointed by it who is employed in a class of position that is prescribed under clause 55(1)(b) by giving the public servant reasonable notice or by giving the public servant compensation in lieu of notice.

38(2) An order to reinstate a public servant who is dismissed under subsection (1) shall not be made by any court, tribunal or other arbitrator.

40 When the dismissal of a public servant takes effect, he or she ceases to be employed by the Crown.

21Section 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.

22Section 3(1) of the Regulation concerns complaints about a disciplinary measure:

3(1) A public servant who is aggrieved by the imposition of a disciplinary measure under section 34 of the Act, other than dismissal for cause, may file a complaint about the disciplinary measure with the Public Service Grievance Board,

(a) if the public servant is eligible under section 5 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

(a) if the public servant complies with the filing requirements set out in section 10

23Section 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.

24Section 4(2) sets out the types of matters that are not properly the subject of complaints under subsection (1) and states, in part, as follows:

4(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

3. A dismissal without cause under subsection 38(1) of the Act or a matter relating to such a dismissal.

Conclusion

25I find, for the reasons that follow, that the Board does not have jurisdiction to hear this application.

26This 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).

27The Regulation clearly states that the Board does not have jurisdiction to consider a complaint about dismissal without cause under s.38(1) of the PSOA and matters relating to such dismissals (s.4(2)3 of the Regulation).

28There is no dispute that the Complainant was dismissed without cause on August 28, 2023, or that he filed a Notice of Proposal on September 7, 2023.

29I find that the content of the Notice of Proposal and the issues raised in it fall within the category of matters that cannot be the subject of a complaint before the Board pursuant to s.4(2)3 of the Regulation.

30In the Notice of Proposal, the Complainant wrote, in part, that:

I propose to file a complaint concerning my dismissal without cause dated August 28, 2023, from my position as Program Manager, Industrial Health and Safety Program – York West.

While I reserve the right to amend or expound on detail in the complaint proper, in brief, the grounds for my complaint are as follows:

1. My employment was terminated erroneously or improperly by the Ontario Public Service;

2. Precedent to my termination, I was placed on a leave of absence of undue length lasting more than 4 months pending an investigation into complaints about my conduct; and

3. I was denied an opportunity to participate meaningfully or at all in the investigation, including, being provided with the specific conduct complained of, and/or having the opportunity to respond substantively to the allegations.

31The Complainant went on to describe the impact the dismissal and “protracted nature of the leave of absence” had on him and his family and expanded on his concern that he had not been able to properly participate in the investigation into his conduct.

32I find that the focus of the complaint identified in the Notice of Proposal was the dismissal without cause and the remaining issues identified were matters relating to the dismissal. I find support for this conclusion in the fact that the dismissal is framed by the Complainant as the culmination of the problems he says he experienced, and that among other remedies outlined in his Form 1, he seeks reinstatement.

33Even assuming without finding that the references to the leave of absence and investigation in the Notice of Proposal do not fall within the category of “matters relating to the dismissal”, but rather, as the Complainant urges, complaints about either workplace discipline or working terms and conditions of employment, made under sections 3 and 4 of the Regulation, the Board would still lack jurisdiction to continue to hear this application.

34To file a complaint under either section 3 or 4, the Regulation requires that the Complainant be a public servant at the time the Notice of Proposal is sent to the Employer. He was not. Once his dismissal took effect, under s. 40 of the PSOA, the Complainant ceased to be an employee of the Crown.

35Other than the dismissal, the Form 1 identified a number of issues such as “bad faith treatment, discrimination, reprisal, breach of confidentiality, improper/unfair investigation, harassment, bullying and abuse of power”. These complaints are either not mentioned or, in the case of the investigation, mentioned in the context of his dismissal without cause in the Notice of Proposal.

36The issues not referred to at all in the Notice of Proposal are not properly before the Board. The Regulation requires that an application to the Board be preceded by a Notice of Proposal. As the Board held in paragraph 9 of Roussel and Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 109224 (ON PSGB) (Nairn):

Prior to filing a complaint with this Board, section 8 of Regulation 378/07 requires a complainant to file a notice of proposal to file a complaint with his or her Deputy Minister. Apart from time limits in that regard, the purpose of the notice of proposal is to trigger a dispute resolution process, during which time the Employer is given an opportunity to respond to the matters intended to be raised in a subsequent complaint. Thus, the Regulation also stipulates that the notice of proposal is to set out the reasons for the complaint.

37The Complainant’s concerns about “bad faith treatment, discrimination, reprisal, breach of confidentiality, harassment, bullying and abuse of power” were not mentioned or included in the Notice of Proposal, which in any event, was not sent to the Employer while he was a public servant.

38Accordingly, the Employer’s jurisdictional objection is granted, and the complaint is dismissed.