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Home My WebLink AboutP-2013-3116.Alemu.19-01-31 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-2013-3116; P-2013-3576; P-2014-0652 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Alemu Complainant - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Marilyn A. Nairn Vice-Chair FOR THE COMPLAINANT Zelalem Alemu FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel WRITTEN REPRESENTATIONS November 29 and December 14, 2018 - 2 - DECISION [1] This decision deals with the Employer’s position that Board Files #2013-3576 and #2014-0652 should be dismissed based on the Employer’s assertion that they are untimely. Two earlier decisions have been issued by the Board dated October 3 and October 30, 2018. [2] Three complaints were set down for hearing on October 30, 2018. That date was adjourned on the basis that the complainant had provided a medical note that indicated that he was unable to attend and participate in an oral hearing. However the October 30, 2018 interim decision further concluded that the evidence did not support a conclusion that the complainant was unable to participate in the progress of his complaints. That decision concluded: [10] However, having been persuaded that the complainant had provided sufficient medical evidence in support of the adjournment of the oral hearing date, I am much less persuaded that the evidence overall supports a conclusion that the complainant is unable to participate in any way in the conduct of his complaints. Both medical notes state that the complainant is unable to submit written documents for any hearing. Yet the complainant was able to file his complaints and has filed various requests to adjourn scheduled hearing dates. Just recently, he raised his request to adjourn the October 30, 2018 hearing date. He has since twice responded to the Board by providing medical notes as well as his accompanying written explanations. Those explanations are directed to the issues under consideration. Thus he has been able to submit both documentary material and his written submissions, notwithstanding the opinion set out in the medical notes in that regard. [11] The Board’s interim decision dated October 3, 2018 notes: [1] The complainant filed three successive complaints, dated December 4, 2013, January 27, 2014, and May 21, 2014. Each complaint takes issue with the Employer’s decision to discipline the complainant for alleged ongoing insubordinate behaviour. The discipline imposed was a letter of discipline, a 1-day suspension, and a 3-day suspension. The complaints were initially scheduled before this Vice-Chair for hearing on October 7, 2015… [2] …The Employer … asserts that Board Files #P2013-3576 and #P-2014-0652 (the second and third complaints respectively) ought to be dismissed at this stage as untimely. The Employer has filed written representations setting out its understanding of the facts and its submissions in respect of …its assertion that the Board lacks the jurisdiction to entertain the two latter complaints on the basis that their filing was untimely, and… its position as to the appropriateness of the complaint in Board File #P2013-3116 proceeding as it asserts that that complaint is now moot. [12] At this stage there is no indication as to when or whether the complainant will return to the workplace. Even the most recent complaint was filed over four years ago. There is a responsibility on a complainant to seek to resolve a - 3 - complaint or to pursue it. Increasing delay will prejudice a responding party’s ability to respond and, in any event, at some point a responding party is entitled to have the issues dealt with. The complainant is not entitled to simply let these complaints languish or fail to participate by some means in the conduct of his complaints in the absence of medical evidence that is significantly more compelling than what has been provided in light of the evidence of the complainant’s ability to participate by means other than an oral hearing. … [18] In order to deal with the timeliness issue, the matter requiring the complainant’s attention is addressing whether he agrees or disagrees with any of the four facts asserted by the Employer in each of paragraphs 14 and 16 above. I am not persuaded, based on the material before me, that the complainant is medically unable to respond to that limited inquiry. [19] Therefore, I hereby direct as follows: 1. As regards Board File #P2013-3576, the complainant is hereby directed to advise the Board by no later than November 30, 2018 whether he agrees or disagrees with any of the four factual assertions made by the Employer and set out in paragraph 14 above. If the complainant disagrees with any of the facts as asserted, he is to indicate his understanding of the fact and the basis of his belief. 2. As regards Board File #P2014-0652, the complainant is hereby directed to advise the Board by no later than November 30, 2018 whether he agrees or disagrees with any of the four factual assertions made by the Employer and set out in paragraph 16 above. If the complainant disagrees with any of the facts as asserted, he is to indicate his understanding of the fact and the basis of his belief. [20] If the complainant takes the position that he is medically unable to respond to this specific and limited direction, he is to provide by no later than November 30, 2018, reliable and sufficient medical documentation prepared by a treating medical practitioner. Any such medical documentation must confirm that the treating practitioner has been provided with and has reviewed a copy of this interim decision. Any medical documentation is to specifically comment on the evidence set out herein from which it appears that the complainant is medically able to respond and participate in a more limited fashion (other than an oral hearing) with respect to the progress of his complaints. Further, any medical documentation must set out the basis for any opinion that the complainant is medically unable to respond to the specific factual inquiry outlined herein. A medical note of the type that has been provided to date is unlikely to be sufficient in addressing this Board’s concerns and inquiry in this regard. [21] Should the complainant fail to respond to the Board’s direction in paragraph 19 above, or, having failed to respond to the direction in paragraph 19, should he also fail to provide the more sufficient and reliable medical evidence as indicated in paragraph 20 above, the Board will deal with Board Files #2013-3576 - 4 - and #2014-0652 on the basis of the material before it. The Board will otherwise deal with these matters upon receipt of, and subject to the complainant’s response. [3] In response to that direction, the complainant filed a written response dated November 29, 2018. Notwithstanding an assertion at the outset of that submission that he was too ill to meaningfully take part in the arbitration proceeding, no further or additional medical evidence was submitted. Rather, the complainant responds to the Board’s directions in paragraph 19 of the November 30, 2018 decision concerning the facts asserted by the Employer and argues in support of his position that these complaints ought not to be dismissed. While not disagreeing with the four facts asserted and relied on by the Employer in respect of the timeliness issue in each of the two complaints under consideration, the complainant asserts additional facts upon which he relies to argue that Board Files #2013-3576 and #2014-0652 should not be dismissed as untimely. [4] First, having regard to the material before the Board, there is no basis on which the Board may properly conclude that the complainant is medically unable to participate in the conduct of these proceedings by way of written representations. As noted in the November 30, 2018 interim decision, the medical evidence provided at that point was not consistent with the complainant’s actions in responding and participating. No further medical evidence has been provided, notwithstanding specific direction in paragraph 20 of the November 30, 2018 decision. Instead the complainant has filed a detailed submission addressing the merits of the preliminary issue. [5] I am therefore satisfied on the basis of the material before me that the complainant is medically able to properly and fully participate and respond via written representations to the issue of the timeliness of the two complaints under consideration. Further, the complainant has provided his representations in that regard. [6] Turning then to the merits of the Employer’s preliminary objection regarding Board Files #2013-3576 and #2014-0652. [7] As noted, the complainant did not dispute the four facts asserted and relied on by the Employer in support of its timeliness objection. Those facts were set out in the October 30, 2018 decision at paragraphs [14] and [16]. As the complainant has not taken issue with those specific facts as asserted, and given that the October 30, 2018 decision specifically directed the complainant to indicate any dispute with those asserted facts, I accept that those facts are not in dispute and have been established. They are as follows: Board File #2013-3576 – one-day suspension 1. The complainant was given a one-day suspension on November 21, 2013. 2. The complainant filed a notice of proposal to file a complaint with respect to that suspension to the Deputy Minister on November 24, 2013. - 5 - 3. A meeting was held with the Deputy Minister’s delegate on January 6, 2014. 4. A complaint was filed with the Board with respect to the one-day suspension on January 25, 2014. Board File #2014-0652 – three-day suspension 1. The complainant was given a three-day suspension on February 12, 2014. 2. The complainant filed a notice of proposal to file a complaint with respect to that suspension to the Deputy Minister on February 14, 2014. 3. A meeting was held with the Deputy Minister’s delegate on April 11, 2014. 4. A complaint was filed with the Board with respect to the three-day suspension on May 16, 2014. [8] The complainant submits that the Employer has provided only limited information to the Board and that the Employer’s submission did not include the complainant’s written submissions to the Deputy Minister’s delegate or email correspondence between the complainant and the Deputy Minister and/or their delegate. [9] The Employer did file a copy of a letter dated January 23, 2014 purporting to be the Employer’s response following the meeting held on January 6, 2014 regarding the one-day suspension. That letter closes with the statement that the Ministry “reserves the right to raise and rely on any objections, including but not limited to, the Public Service Grievance Board’s jurisdiction to review your proposed complaint”. [10] The complainant provided the Board with a copy of a letter dated February 25, 2014 from the Deputy Minister indicating receipt of the complainant’s February 14, 2014 notice of proposal to file a complaint with respect to the three-day suspension. That letter states that the Minister’s designee will meet with the complainant and that the complainant “will be provided with written notice of the Deputy Minister’s decision within 30 days of the meeting”. The letter also includes the statement that the meeting is “without prejudice to any position that the Ministry may take in this matter”. [11] A careful reading of the complainant’s submission indicates that the complainant received no response from the Deputy Minister or the delegate concerning the three- day suspension. He asserts that he expected and hoped that the Employer would act in good faith and with transparency. He asserts that he had to wait for the decision of the delegate before filing his complaint with the Board and that he had no expectation that the Employer would use the delegate’s failure to comply with Regulation 378/07 of the - 6 - Public Service of Ontario Act, 2006 (the “Regulation”) against him and “trap” him in a time limits argument. [12] The complainant argues that the Regulation cannot be read as intending to allow the Employer to “have it both ways”. The complainant argues that the intent of the Regulation must be to provide a fair and objective disciplinary process. The complainant argues that as he was required to meet with the delegate he was also then required to wait for a decision before considering whether to file a complaint with the Board. Alternatively, the complainant argues, the Employer had a duty to inform him of the time limits. [13] In reply, the Employer argued that there was no evidence that the complainant was precluded from filing his complaints in accordance with the Regulation or that he was required to wait for a decision from the Deputy Minister or the delegate. The Employer disputes that it owed any duty to inform the complainant of the time limits set out in the Regulation. The fact that the Employer had previously agreed to adjourn hearing dates based on the complainant's asserted medical condition was irrelevant, argued the Employer, as it had never communicated any intention to give up its right to seek to rely on the time limits set out in the Regulation. [14] In addition to relying on the provisions of Regulation 378/07, the Employer referred to the following cases: St. Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB); Bourgeault v Ontario (Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB); Strong v Ontario (Children and Youth Services), 2016 CanLII 89880 (ON PSGB); Plouffe v Ontario (Community Safety and Correctional Services), 2017 CanLII 25421 (ON PSGB); Taylor v Ontario (Community Safety and Correctional Services), 2017 CanLII 65620 (ON PSGB): Morris et al v Ontario (Community Safety and Correctional Services), 2018 CanLII 64318 (ON PSGB); Telford v Ontario (Finance), 2016 CanLII 36364 (ON PSGB); and Burkholder v Ontario (Government Services), 2013 CanLII 84293 (ON PSGB). Decision [15] Regulation 378/07 provides, inter alia: 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). - 7 - 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). [16] The provisions of Regulation 378/07 are very specific and provide a very narrow window of opportunity for employees excluded from a bargaining unit to file a complaint to this Board alleging unjust discipline. Whatever might seem reasonable in response to various Employer commentary, action, or inaction, the fact is, this Board’s jurisdiction (authority to act) derives solely from the Regulation. This Board has no inherent jurisdiction to do what it thinks may be fair or just in the circumstances of any case. The Board has consistently held that the time limits in the Regulation are mandatory and that this Board has no discretion to relieve against those time limits. If a complainant was not eligible to file a complaint because he failed to meet the time limits set out in the Regulation, there is no complaint properly before the Board for its consideration and the Board has no authority to act in respect of such a complaint. [17] In St. Amant, supra, the Board held: The language used to prescribe time limits in the new Regulation 378/07, however, is significantly different and leaves no doubt as to its mandatory nature. This choice of mandatory language can lead to no other conclusion than that compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter. 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 must conclude that it has no power to alter the jurisdictional consequences of a failure to comply with the 14 day time limit. 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. [18] The mandatory nature of the time limits and the Board’s lack of discretion to alter or relieve against those time limits has resulted in the dismissal of complaints without consideration of the merits of those complaints. See the decisions of Strong, supra, also a complaint challenging discipline imposed, and Plouffe, supra. The Board has repeatedly noted that such dismissals result regardless of how meritorious the claim might be on its merits. [19] In Bourgeault, supra, the Board addressed the issue of filing complaints in relation to the timing of the dispute resolution period provided for in section 9 of the Regulation. It dismissed the complaints in that case as untimely. [20] It is the case that the time limits in the Regulation are not straightforward and require considerable attention in order for a complainant to file a timely complaint, providing the Board with the jurisdiction to then consider the complaint. These strict limits are presumably in consideration of the fact that, unlike unionized employees - 8 - protected by the terms of a collective agreement and the mandatory arbitration provisions contained therein, excluded employees have no such recourse to challenge an employer’s actions or decisions affecting one’s employment. Similar but more limited recourse is provided by the Regulation in establishing this Board and setting out the scope of its jurisdiction to review the Employer’s actions and/or decisions. However, that jurisdiction is limited and there is no duty on the Employer to advise or assist a complainant in the filing of a timely complaint. The Board’s processes are adversarial. [21] This complainant is not the first and may not be the last excluded employee who waited to hear from the Employer for its further consideration. Those employees may also well believe that they act reasonably in doing so. However, they do so at their peril, as the Board has no discretion to consider such circumstances in applying the requirements of the Regulation pursuant to which it derives its authority to act. If there has been a failure to meet the time limits as set out in the Regulation, a complainant is rendered ineligible to file a complaint, rendering the Board unable to entertain their complaint. [22] As the Chair of the Board recently stated in Telford, supra, in dismissing as untimely a complaint seeking to challenge that complainant’s termination from employment: [35] This lack of power to relieve against the time limits means that the reasons for not meeting the time lines, however reasonable or sympathetic, are not matters that the Board can rely on to extend the time lines. [36] Counsel for the complainant urges the Board to find that the restrictions in the regulation are so problematic in the ways set out above, that they should not be considered binding in the way that the Board has found them to be in its previous decisions interpreting Regulation 378/07. Despite the accuracy of counsel’s observations about what one could term a lack of user- friendliness of the wording of the regulation, as well as the fact that it can work hardship in particular cases, I do not find it appropriate to depart from the Board’s established jurisprudence… (emphasis added) [23] Sub-section 9(5) of the Regulation specifically contemplates the possibility that a meeting with the Deputy Minister or their delegate may not occur within the 30-day time period and directs that, in that event, the period for dispute resolution expires 30 days after the notice was given to the Deputy Minister. [24] In Board File #2013-3576 regarding the one-day suspension, the facts indicate that the complainant filed a notice of proposal to file a complaint with respect to that suspension to the Deputy Minister on November 24, 2013. A meeting with the Deputy Minister’s delegate was not held until January 6, 2014, more than 30 days after receipt of that notice. [25] In that circumstance the period for dispute resolution expired 30 days after the notice of proposal was given, that is, 30 days after November 24, 2013 (December 24, - 9 - 2013). Then, further to section 10(1) of the Regulation, the complainant had 14 days to file his complaint. The period for filing a timely complaint ended on January 7, 2014. The complaint was not filed until January 25, 2014. It is therefore untimely. [26] In Board File #2014-0652 regarding the three-day suspension, the facts indicate that the complainant filed a notice of proposal to file his complaint with respect to that suspension on February 14, 2014. A meeting with the Deputy Minister’s delegate was not held until April 11, 2014, more than 30 days after receipt of that notice. [27] In that circumstance the period for dispute resolution expired 30 days after the notice of proposal was given, that is, 30 days after February 14, 2014 (March 16, 2014). Then, further to section 10(1) of the Regulation, the complainant had 14 days to file his complaint. The period for filing a timely complaint ended on March 30, 2014. The complaint was not filed until May 16, 2014. It is therefore untimely. [28] Having regard to the conclusions reached at paragraphs [25] and [27] above, I find that Board Files #2013-3576 and #2014-0652 are untimely. The Board has no alternative but to find that it has no jurisdiction to entertain these complaints. Board Files #2013-3576 and #2014-0652 are therefore dismissed. [29] Board File #2013-3116 remains outstanding. It relates to a letter of discipline provided to the complainant on August 29, 2013 alleging insubordination. It is the position of the Employer that this complaint is now moot. The complainant has not taken a position in response to the Employer’s assertion in that regard. I therefore direct the complainant to advise the Board by no later than February 12, 2019 whether he seeks to pursue this complaint before the Board. Subject to the complainant’s response, the Board will then determine next steps in light of the Employer’s stated position. Dated at Toronto, Ontario this 31st day of January, 2019. “Marilyn A. Nairn” _______________________ Marilyn A. Nairn, Vice-Chair