Loading...
HomeMy WebLinkAboutP-2017-0813.Morris.18-06-15 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# P-2017-0813 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Morris Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Marilyn Nairn Vice-Chair FOR THE COMPLAINANT John Hasted FOR THE EMPLOYER Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS May 5, 7 and 24, 2018 - 2 - DECISION [1] This complaint asserts that the complainant, a Sergeant at Elgin-Middlesex Detention Centre, was subject to excessive and unwarranted discipline imposed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Employer”). The Employer’s Form 2 response to the complaint raised a preliminary objection to the Board’s jurisdiction to hear the complaint on the basis that the filing of the complaint was untimely under the terms of Regulation 378/07 of the Public Service Act of Ontario 2006, S.O. 2006, c. 35, Sched. A (the “Regulation”). [2] In its Form 2, the Employer asserted the following facts. The complainant was suspended from work on May 15, 2017. Notice of proposal to file a complaint was given by the complainant to the Deputy Minister on May 18, 2017. A meeting with the Deputy Minister’s delegate was held on June 16, 2017. The complaint was filed with the Board on July 13, 2017. [3] It was the submission of the Employer that the complaint was filed three days prior to the expiry of the dispute resolution period set out in sub-section 9(3)(a) of the Regulation. It was the Employer’s position that the complaint had therefore been filed prematurely, before the dispute resolution period had expired, in contravention of sub- sections 9(1) and 10(1) of the Regulation. [4] In its Form 2 response, the Employer asked that the Board make a determination with respect to the timeliness issue prior to mediation scheduled for May 14, 2018. On April 18, 2018 the Board directed the complainant’s representative to advise the Board in writing by no later than April 27, 2018 as to the complainant’s position in response to the Employer’s submission that the complaint be dismissed prior to mediation for non- compliance with the timelines. No response was received to that direction. However, on May 2, 2018 the complainant emailed Employer counsel asking that the mediation be adjourned as his representative was not available for medical reasons. [5] In a decision dated May 3, 2018, the Board noted that it was not apparent that the complainant was aware of the Board’s April 18, 2018 direction. That decision adjourned the scheduled mediation date. However, it further directed the complainant to respond in full and in writing to the Employer’s position that the Board has no jurisdiction to entertain this complaint on the basis that the complainant failed to meet the timelines for filing a complaint. That decision noted that, in its Form 2, the Employer had asserted the facts and had provided the documentary material on which it relied in support of its timeliness objection. The decision also provided sufficient time to respond should the complainant find it necessary to obtain other representation. [6] The complainant’s representative emailed the Board on May 5, 2018 indicating that he was on medical leave from work. As noted in the May 3, 2018 decision, the complainant’s representative is another Sergeant employed by CSCS who has assisted other of his colleagues with complaints before the Board. That email asks that the - 3 - adjournment be reconsidered. It is not clear whether the representative understood that an adjournment had been granted. However, the email also responded to the timeliness issue, asserting that the representative had received a verbal message from the Deputy Minister’s office advising that there was no interest in discussing or resolving the complainant’s matter at that stage. The email went on to indicate that “ergo” the complainant filed his complaint right after this discussion. [7] On May 7, 2018 the Board then received another email from the complainant’s representative. It confirmed that he was in receipt of the Board’s May 3, 2018 decision and indicated that the email constituted the complainant’s submission with respect to the timeliness objection as directed by that decision. The representative again asserted that he had had a conversation with the employer representative just prior to the date that the matter was forwarded to the Board for mediation. The employer representative had advised that there was no desire on the Employer’s part to resolve the matter at that stage. The complainant’s representative further submitted that it was “surprising that the employer is objecting to a 3 day early filing when they themselves influenced the filing…by stating absolutely [that they were] not going to remedy the matter at this stage”. [8] In reply on May 24, 2018, the Employer maintained its position that the Board did not have jurisdiction to entertain the complaint and that the complaint ought to be dismissed at this stage. While it disputed that the asserted verbal conversation had in fact occurred and noted the lack of particulars regarding with whom and when the alleged conversation occurred, the Employer argued that, even assuming such a conversation, the complaint was still untimely as the Regulation stipulated that the dispute resolution period did not expire until the earlier of either written notice from the Employer of its decision or 30 days after the meeting. As no written notice had been given, argued the Employer, the earliest the complaint could properly have been filed was July 16, 2017, 30 days after the June 16, 2018 meeting. * [9] For purposes of this decision, I will assume that the facts asserted by the complainant are true and provable. I note that assertions in the complainant’s Form 1 are consistent with facts asserted by the Employer in that he asserts that he was disciplined on May 15, 2017, that he filed a notice of proposal to file a complaint on May 18, 2017 and that a meeting was held in accordance with section 9 of the Regulation. The complainant did not take issue with the assertion that the meeting with the Deputy Minister or his/her designate was held on June 16, 2017. The Board’s records disclose that the complaint was filed on July 13, 2017. [10] Sections 9 and 10 of Regulation 378/07 provide: 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). - 4 - … (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. O. Reg. 378/07, s. 9 (3). … 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). … [11] It has repeatedly been held by the Board that the time lines set out in the current Regulation are mandatory and, if not met, deprive the Board of jurisdiction to entertain a complaint. The Board has no discretion to relieve against the regulatory time limits. See the decisions in St. Amant v. Ontario (Community Safety and Correctional Services), 2013 CanLII 4673 and Ois v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76835. [12] As appears to have been acknowledged by the complainant through his representative, this complaint was filed prior to the expiry of the dispute resolution period. To be timely, a complaint must (among other time limits) be filed within a 14-day window following the expiry of the dispute resolution period. See paragraph 21 of the Board’s decision in Doyle v. Ontario (Ministry of Municipal Affairs), 2017 CanLII 52705. There is no assertion that any written response was given by the Deputy Minster or his/her designate at any time. Thus, the dispute resolution period expired in accordance with sub-section 9(3)(a) of the Regulation, that is, 30 days after the meeting with the Deputy Minister or his/her delegate. [13] As noted earlier, the complainant did not take issue with the assertion that the meeting took place on June 16, 2017. In the absence of a written response, the dispute resolution period expired 30 days later. This complaint was filed on July 13, 2018 and was premature as 30 days had not yet elapsed from the date of the meeting. [14] The complainant’s assertion that an unnamed employer representative indicated verbally that no resolution was being considered at that stage does not assist the complainant. The time lines that govern the Board’s jurisdiction run based on the parameters set out in the Regulation and are not affected by other communications between the parties. The Regulation does not provide the Board with any discretion to treat verbal representations made by the Employer as changing the regulatory framework. The various time lines and preconditions for filing a complaint have been ordained in the Regulation, providing a very specific window of opportunity to file a complaint before the Board. - 5 - [15] Nor can a complainant assume that mediation will occur once a complaint has been filed with the Board, particularly should the Employer raise preliminary objections going to the Board’s jurisdiction to entertain a complaint. Absent jurisdiction, the Board has no authority to consider a complaint. While mediation is a process that the Board schedules in an attempt to assist in the resolution of disputes, it requires that both parties consent to participating. See the decision in Taylor and Ontario (Community Safety and Correctional Services) 2017 CanLII 65620. [16] Having regard to all of the above, I find that this complaint is untimely in that it was filed prior to the expiration of the dispute resolution period. In the result, the Board has no jurisdiction to entertain the complaint. This complaint must be and is therefore dismissed. Dated at Toronto, Ontario this 15th day of June, 2018. “Marilyn Nairn” _______________________ Marilyn Nairn, Vice-Chair