HomeMy WebLinkAboutP-2016-0607.Ball.17-03-17 Decision
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Commission des
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Toronto (Ontario) M5G 1Z8
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PSGB#2016-0607
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Ball Complainant
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Marilyn A. Nairn Vice Chair
FOR THE
COMPLAINANT
Shannon Ball
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Counsel
SUBMISSIONS March 7, 2017
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Decision
[1] The complainant, Shannon Ball, is employed by the Ministry of Community
Safety and Correctional Services (“CSCS” or the “employer”). She works as a Sergeant
at the Ottawa Carlton Detention Centre (“OCDC”). Her complaint to the Board asserts
that the employer failed to properly compensate her under sections 21 and 22 of the
Compensation Directive applicable to managers. The claim relates to a period from
January 1, 2015 to January 21, 2016 and seeks payment for standby and/or on call pay
for all hours the complainant asserts were not properly compensated over that period.
[2] This application was filed on June 13, 2016. By letter dated June 21, 2016 the
Board forwarded a copy of an earlier decision (Hasted v Ontario (Ministry of Community
Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB)) requesting that the
complainant review that decision as the circumstances appeared to be similar, and to
forward his submissions as to why his complaint differed.
[3] The Board received a response from the complainant dated July 21, 2016. It
asserts that the complainant became aware of the circumstances giving rise to her
complaint several days after the release of the Board’s decision in Huppmann v Ontario
(Ministry of Community Safety and Correctional Services), 2016 CanLII 27640 (ON
PSGB) on April 14, 2016. It further asserts that there was a meeting of all Sergeants
regarding this and other issues and that ‘we’ were told to wait 6-8 weeks after final
compensation was complete and ‘we’ would be made whole. It further states that the
employer should not be absolved from responsibility for failing to act in good faith
regarding the circumstances.
[4] During this period a significant number of applications had been received by the
Board from Sergeants at OCDC raising the same allegations. The Board reviewed
those applications and four applications were set down for hearing on January 17, 2017,
at which time the parties’ evidence and submissions were heard. A decision with
respect to those applications, cited as Ashdown et al and The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) was released on February 3,
2017. Following the release of that decision, the Board, on February 7, 2017, again
wrote to the complainant asking her to review that decision and forward her
submissions as to why her complaint differed by no later than March 7, 2017.
[5] That letter advised that, based on the complainant’s submission, the Board may:
1. dismiss the complaint without a hearing, if the submissions regarding the
complaint are not received by the Board on or before the date set;
2. decide that there is a need for a hearing to deal with any issue;
3. request further submissions from the complainant and/or the employer
before deciding whether or not to hold a hearing;
4. dismiss the complaint without a hearing if the Board determines that it
does not have jurisdiction over the complaint, for timeliness or other
reasons, or that it does not make out an arguable case for the remedy
sought.
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[6] No response has been received from the complainant to the Board’s direction
contained in that most recent letter.
[7] Ontario Regulation 378/07, made pursuant to the Public Service of Ontario Act,
2006, as amended, authorizes the Board to hear complaints about a working condition
or term of employment. However, it sets particular and strict parameters regarding the
filing of a complaint as follows:
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…
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.
[8] The Board has previously determined that this 14-day time limit for providing a
Notice of proposal to file a complaint is mandatory and that the Board has no discretion
to relieve against the time limit. A failure to adhere to the time limit deprives the Board of
jurisdiction to entertain the complaint. See the Board’s decision in St. Amant v Ontario
(Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON
PSGB) and paragraph 28 of Bourgeault v Ontario (Ministry of Community Safety and
Correctional Services), 2013 CanLII 84294 (ON PSGB).
[9] On its face, the application alleges a failure to pay certain compensation up until
January 21, 2016. In its decision in Hasted, supra, the Board found:
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[25] …There was no continuing breach of the alleged entitlement after
January 2014, as the working condition was no longer engaged. Neither
complainant continued to perform on call duties at TCI after January 2014.
Yet they seek compensation for the entire period of their assignment, a
remedy that may well not have been available to them had they raised the
issue during their assignment.
[26] I am persuaded that, in the circumstances here, a timely notice of
proposal to file a complaint was required to have been filed no later than 14
days following the end of the Acting Deputy Superintendent assignment at
TCI, or, no later than 14 days from the date of payment reflecting the
completion of that assignment. In either case, the July 2014 Notice was well
beyond a timely date.
[10] Similarly, in this case, the conduct complained of ended on January 21, 2016.
Compensation sought for any period claimed would have been payable during the
following pay period, or shortly into February 2016 at the latest. It is not clear from the
application that a Notice of proposal to file a complaint was given to the appropriate
Deputy Minister, as a copy of the notice is not provided. Rather, it appears that the
complainant may have ‘cut and pasted’ the contents of her notice dated April 29, 2016
into her application. Assuming that a Notice of proposal to file a complaint was given on
April 29, 2016 it was given well beyond 14 days from February 2016. In Ashdown et al,
supra, the Board found:
[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…
[11] On that basis, this application is untimely. However, in addition, virtually identical
allegations of a meeting and a representation to wait 6-8 weeks were made here as
were made in the applications leading to the decision in Ashdown et al, supra. In each
of those applications, Notice of proposal to file a complaint was given on April 29, 2016.
The decision in Ashdown et al, supra, further finds:
[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
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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.
[12] From a review of the particulars in this application, it is clear that the complaint
arises out of the same circumstances and at the same institution as those heard in the
Ashdown et al case. No other or different particulars are identified in the original
application or in the July 21, 2016 letter. There is no response to the Board’s
subsequent direction and therefore no other circumstances for the Board to consider in
assessing the issue of its jurisdiction over this application or differentiating it from those
considered in Ashdown et al, supra. Based on the material before the Board, the
findings in Ashdown et al apply equally here. The application is untimely as, assuming
that it was given, the Notice of proposal to file a complaint was not given until April 29,
2016, which, in the circumstances, is well beyond the 14-day mandatory time limit set
out in the Regulation.
[13] I find, therefore, that the Board has no jurisdiction to entertain this application and
it is hereby dismissed.
Dated at Toronto, Ontario this 17th day of March 2017.
Marilyn A. Nairn, Vice-Chair