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HomeMy WebLinkAboutP-2016-0603.Ashdown et al.17-02-03 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB#2016-0603, P-2016-0610, P-2016-0611, P-2016-0612 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Ashdown et al Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Marilyn A. Nairn Vice Chair FOR THE COMPLAINANTS Steven Ashdown Kevin Spike Patrick Barnes for Susan Spike FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING January 17, 2017 - 2 - Decision [1] Four applications were scheduled for hearing together on January 17, 2017. Each of the applications seeks payment of standby pay and/or on call pay during the period January 1, 2015 to January 21, 2016, pursuant to sections 21 and 22 of the Compensation Directive (the “Directive”). The employer raised a preliminary issue with respect to the timeliness of the applications. This decision deals only with that issue. [2] I note that there were a number of additional applications filed with the Board raising these same issues. Given the timeliness issue, the Board earlier forwarded a copy of its decision in Hasted v. Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 to the complainants asking them to review it and identify if and how their circumstances differed. [3] Each of these complainants responded, stating that they were made aware of the circumstances giving rise to their complaint several days after the release of the Board’s decision in Huppmann v. Ontario (Community Safety and Correctional Services), 2016 CanLII 27640 on April 14, 2016. In the result, the Board scheduled these matters for hearing, for the purpose of hearing the parties’ evidence and submissions with respect to the timeliness issue. [4] At the outset of the hearing I was advised that Mr. Lachance was ill and could not attend. Although no request to adjourn his matter was received, the employer also did not take the position that his matter was to be determined at this time. The assertions made in each of the other three applications are identical to those made by Mr. Lachance. This decision considers the evidence and submissions received with respect to those three applications. [5] None of the complainants were represented by counsel. Ms. Spike was also not present at the hearing, having advised the Board in advance that Patrick Barnes, a co- worker, would represent her interests at the hearing. Having proceeded somewhat informally, the complainants effectively gave evidence during their submissions, notwithstanding having previously been asked if they had provided me with all of the factual information upon which they sought to rely. The employer did not object to my receiving this evidence and did not challenge it to any extent. [6] At the time of filing their applications, the complainants were employed as Sergeants at the Ottawa Carlton Detention Centre (“OCDC”). Mr. Ashdown’s application was filed with the Board on June 8, 2016. The other applications were filed on June 13, 2016. In each case, notice of proposal to file a complaint was provided to the relevant Deputy Minister on April 29, 2016. [7] During the period claimed, the employer was in negotiations with the OPSEU correctional bargaining unit. The applications claim that the complainants were placed on standby or on call throughout the period, with the expectation of being available for recall to work. The applications assert that the complainants were told to have a bag packed and ready in the event that they be called back to work and that they were - 3 - advised to have any required medications available for a three month period. The applications assert that a phone tree was established for the purpose of quickly mobilizing Sergeants for a return to work and that pagers were issued to all Sergeants in May 2015 with the expectation that they be available for immediate recall to the worksite. [8] A copy of an email dated January 10, 2016, sent from Ian GlynWilliams, Manager, Strategic Projects, to Marilyn Tomkinson, Regional Director, and Pauline Jones, Associate Deputy Minister, was filed in evidence. Mr. GlynWilliams had met with the Sergeants on January 10, 2016. That email notes that the management team at OCDC were “having to deal with their OMs [Sergeants] and a fair amount of confusion around the current compensation directive”. The email made no mention of standby or on call pay. Rather, it posed two questions around a 2.5 times enhanced overtime pay rate and a question around re-qualifying for that overtime rate until such time as normal operations resumed at the institution. The email also advised that the Sergeants were requiring an answer by noon the next day. [9] In submissions Mr. Ashdown stated that on January 11, 2016 another meeting with Mr. GlynWilliams was held. At that time, there was no response from the employer and, the complainants asserted, the Sergeants continued to work in good faith based on Mr. GlynWilliams statement that there would be a response, they understood, by the middle of March 2016. The complainants asserted that they were told by Mr. GlynWilliams to wait six to eight weeks for their final compensation to be resolved and that they trusted the employer to compensate them appropriately. * [10] It was the position of the employer, relying on Ontario Regulation 378/07 (the “Regulation”) and the Board’s decisions in Hasted, supra, and Carisse v. Ontario (Community Safety and Correctional Services), 2016 CanLII 89887 that the applications were untimely and that therefore the Board had no jurisdiction to entertain them. [11] The employer, referring to the requirements for filing and the time limits set out in the Regulation, argued that, in each case, the notice of proposal to file the complaint was untimely. Referring to the Board’s decision in Hasted, supra, the employer argued that the complainants gave notice of their complaints only after becoming aware of a potential legal argument available to them. The employer argued that, as found in Hasted, supra, a timely notice of proposal was required to be filed no later than 14 days following the end of the assignment complained of in January 2016. The employer asserted that the complainants were aware of an alleged breach in January 2016, well before April 29, 2016. [12] The email and any advice to wait for the employer’s response did not assist, argued the employer. Mr. GlynWilliams had no authority to commit the employer to any payment, it argued. Nor did the information sent to Ms. Tomkinson or Ms. Jones constitute appropriate notice to the Deputy Minister, argued the employer. - 4 - [13] In addition, argued the employer, the applications were also untimely with respect to their filing at the Board. A similar 14-day requirement for filing the application ran from the end of the dispute resolution period to the date of receipt of the application by the Board, argued the employer. The employer argued that the complainants should have given their notice of proposal to file the complaint no later than late January, 2016. The dispute resolution process and an additional 14 days to file the complaint at the Board would have ended some 44 days later, that is, some time in late February 2016, argued the employer. Thus, the employer argued, the applications were untimely on that basis as well. The employer also referred to the Board’s decision in Carisse, supra, arguing that the circumstances were the same, warranting the same result. [14] The complainants were provided with copies of the Board’s decisions in Hasted and Carisse, both supra, as well as a copy of Ontario Regulation 378/07. Subsequently, the Board heard their submissions. Each adopted all of the submissions made on behalf of the complainants. [15] The complainants argued that the decision in Carisse, supra, was distinguishable, as the complainant in that case, in response to the Board’s request, had declined to provide the Board with further submissions and the decision to dismiss that application was made based solely on the material in the application. [16] The complainants argued that the release of the Huppmann decision did not lead to a realization that they had a legal right, prompting the filing of the applications. Rather, they argued, it gave rise to the realization that the employer was not going to abide by the time lines indicated by Mr. GlynWilliams, and that the employer would fail to comply. Therefore, argued the complainants, their applications fell within the time limits. The complainants argued that Mr. GlynWilliams was an appropriate Ministry representative and that they were entitled to rely on his comments. The email was copied to Associate Deputy Minister Jones, argued the complainants, effectively providing notice to the Deputy Minister of their complaint. The complainants argued that they had acted in good faith and had trusted the employer to act appropriately. They argued that the workplace structure is hierarchical and it is not within their scope to question a Ministry representative. * * * [17] Based on the evidence before me I must dismiss these applications as untimely. The applications fail to meet the time limits set out in Ontario Regulation 378/07 and, as a consequence, the Board has no jurisdiction to entertain them. [18] Ontario Regulation 378/07 provides for the filing of complaints to this Board for adjudication. It sets out specific requirements that must be met in order for an application to be heard on its merits. The Board has, on a number of occasions, confirmed that these requirements are mandatory and that the Board has no discretion to relieve against the time limits set out in the Regulation. In Hasted, supra, the Board stated: [18] … The cases referred to establish clearly that the time limits for filing a - 5 - notice of proposal to file a complaint, set out in sub-section 8(4) of Regulation 387/07, are mandatory and that the Board has no discretion to relieve against those time limits. The decision in John Hauth, supra, concludes: [2] In three recent cases, the Public Service Grievance Board considered the legal implications of the requirement imposed by section 8 of Regulation 387/07 to give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board made it clear that notice to the Deputy Minister was an essential precondition for it to take jurisdiction over a complaint. At paragraph 38 of that decision, the Board stated: Furthermore, there was no suggestion that the Board can simply ignore the fact that the preconditions in sections 8 and 9 were bypassed, or that there is power in the Board to treat the matter as if those preconditions had been met…If the complainant was not eligible to file the grievance, there is no grievance properly before the Board, and it must be dismissed. [3] A similar approach was taken by the PSGB in a second case, Muldoon v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 13, where the complainant had failed to give the required notice in respect of several complaints… [4] …In the third and most recent case, St. Amant v. Ontario (Ministry of Community Safety and Correctional Services) [2013] O.P.S.G.B.A. No. 2, the Board dealt with the situation where notice had been given but that notice fell outside the required time limits… [5] … As the Board held in the St. Amant case, notice within that time limit is a precondition for the Board to assume jurisdiction over a complaint. The late filing of this notice means that the complainant was not authorized by that Regulation to file a complaint with the result that the Board has no jurisdiction to deal with it. [6] The language used to prescribe time limits in the new Regulation 378/07 leaves no doubt as to its mandatory nature. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board has no power to alter the jurisdictional consequences of a failure to comply with the time limits set out in section 8 of that Regulation. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments. [19] These decisions make it clear that, unless the notice of proposal to file a complaint is filed within the regulatory time limit, the Board has no jurisdiction to consider the complaint. They also make clear that the Regulation intended to impose strict time lines for the filing of a notice of proposal to file a complaint, putting the employer on timely notice of an issue and removing any ability of the Board to extend that time limit. [19] Sections 21 and 22 of the Directive set out the circumstances in which Sergeants are entitled to be compensated for being on standby or on call. These applications complain about a working condition or term of employment as they claim payment of standby pay and/or on call pay. The Regulation provides, inter alia: - 6 - Complaint about a working condition or a term of employment 4. (1) Subject to subsection (2), a public servant who is aggrieved about a working 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, … (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. O. Reg. 378/07, s. 4 (1). FILING A COMPLAINT Notice of proposal to file a complaint 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. … (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. O. Reg. 378/07, s. 8 (4). Period for dispute resolution 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. O. Reg. 378/07, s. 9 (1). … (5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5). Filing a 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. O. Reg. 378/07, s. 10 (1). … [20] Firstly, the Regulation 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. For purposes of these applications, the - 7 - April 29, 2016 notice to the Deputy Minister constitutes the giving of notice of proposal to file a complaint. [21] In order to meet the time limits under the Regulation, a notice of proposal to file a complaint must be given to the Deputy Minister “within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint”. [22] On its face, that language is ambiguous. At paragraph 22 of its decision in Hasted, supra, the Board noted that mere knowledge of the working condition or term of employment on a complainant’s part was insufficient to start the time limit running, as there may yet have been no violation of the provision. Further, that it was “more reasonable to interpret the time limit as running from the date that a complainant becomes aware of circumstances giving rise to the complaint…”. [23] The applications assert that the complainants were required to be on call or on standby from January 2015. Particulars referred to were the requirement to pack a bag, having medications on hand, and carrying a pager from May 2015. There was no suggestion from the complainants that they did not understand these conditions at the time they were initiated. They appear to have been aware of what was being required of them from the outset. [24] Further, none of the complainants asserted that they were unaware of the provisions of sections 21 and 22 of the Directive at any time during this period. The only evidence before the Board is of two meetings held a year after the beginning of the claim, on January 10 and on January 11, 2016. There is also no evidence that compensation for on call and/or standby was discussed at those meetings. The email references only overtime pay, a payment made for working in excess of normal hours, quite different from a payment made for being required to hold oneself available to be recalled to work when not scheduled to work. [25] On the evidence before me, I find that the complainants were in a position to investigate and challenge the employer’s position during the period claimed. As such, their claim falls squarely within the decision in Hasted and must fail. They were aware or ought reasonably to have been aware that they were not being compensated in the circumstances that they now claim apply. As stated, they were in a position to investigate and challenge the asserted failure to pay. It is incumbent on a complainant to act in order to preserve a complaint by meeting the 14-day time limit for giving the notice of proposal to file a complaint. As noted at paragraph 23 in Hasted, the short and mandatory time limits set by the Regulation are clearly intended to require that issues be brought to the attention of the employer at the earliest opportunity. On the basis of the evidence before me and subject to consideration of the argument regarding the representation made by Mr. GlynWilliams, the latest date for giving timely notice of proposal to file a complaint would have been sometime in late January 2016 following the end of the assignment claimed. On that basis, these applications are untimely. - 8 - [26] The complainants argued the time limits issue based on the discussions held with the employer in January 2016. The complainants asserted that they were entitled to rely on the representation made by Mr. GlynWilliams and that they gave notice to the Deputy Minister because they realized, in reading the Huppmann decision, that the employer was not intending to compensate them. It may be that, in reading the Huppmann decision, the complainants became aware that the employer had taken the position in that case that standby and on call were not payable for the period in question and that the Board had made a limited finding to the contrary. However, that does not account for the fact that, in respect of any representation made by Mr. GlynWilliams, the complainants were expecting a response from the employer by mid-March 2016 and did not give notice until April 29, 2016. [27] The complainants asserted that they trusted the employer to respond within the time frame that Mr. GlynWilliams had indicated, that is, 6-8 weeks from January 11, 2016. There may be an issue as to whether an excluded employee can rely on a representation by the employer to wait and thereby not run afoul of the time limits under the Regulation. However, even assuming that the complainants were entitled to rely on the representation from Mr. GlynWilliams with respect to their claim for standby and on call pay, a response was expected by no later than March 7, 2016, 8 weeks following the January 11, 2016 meeting. The issue crystallized at that time as neither a response nor compensation was forthcoming. Yet the April 29, 2016 notice of proposal to file a complaint was not given for a further 8 weeks, well beyond a 14-day time limit, rendering the complaints untimely on that basis as well. [28] The employer argued that the applications were also untimely because they were not filed with the Board within the mandatory time limit following the expiry of the dispute resolution process. I have no evidence that the Deputy Minister or his delegate met with the complainants or that written notice of the Deputy Minister’s decision was given to the complainants about their complaint. Thus, sub-section 9(5) of the Regulation applies to determine the timely filing of the complaint to the Board. However, having found the giving of notice of proposal to file the complaints to be untimely, it is unnecessary to consider this argument. [29] Having regard to the conclusions at paragraphs 25 and 27 above, I find that the notice of proposal to file a complaint given by each of Sergeants Ashdown, K. Spike, and S. Spike was untimely. The Board therefore has no jurisdiction to entertain their complaints. They are therefore dismissed. - 9 - [30] This decision is to be provided to Mr. Lachance, who shall have 30 days from the date of this decision to indicate in writing to the Board whether he seeks any further opportunity to have his matter heard by the Board and, if so, the basis for any such request. Absent any such response, his complaint will also be dismissed. Dated at Toronto, Ontario this 3rd day of February 2017. Marilyn A. Nairn, Vice Chair