HomeMy WebLinkAboutP-2018-3801.Laforest.20-01-23 Decision
Public Service
Grievance Board
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Toronto, Ontario M5G 1Z8
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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-2018-3801
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Laforest Complainant
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brendan Morgan Vice-Chair
FOR THE
COMPLAINANT
Mario Laforest
FOR THE EMPLOYER Jordanna Lewis
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING
SUBMISSIONS
May 27, 2019
July 9, 2019, July 19, 2019 and August 2,
2019
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DECISION
A. Background
[1] The Ministry of the Solicitor General (“SG” or the “employer”) employs the
complainant, Mr. Mario Laforest, as a Sergeant (Operational Manager 1). At the
time of the filing of this complaint, correctional services fell under the jurisdiction
of the Ministry of Community Safety and Correctional Services. (“CSCS”) but has
since been subsumed by the “SG”. At all relevant times, the complainant was
employed at the Employer’s Toronto East Detention Centre (“TEDC”). The
complainant has been employed with the Employer since 1984.
[2] On March 8, 2019, the complainant filed a complaint with the Board contesting
the Employer’s decision to deny him a leave of absence to attend an interview
meeting at the employer’s Niagara Detention Centre. The employer’s decision to
decline the complainant’s request for a leave of absence resulted, in the opinion
of the complainant, the denial of a “Career Development Opportunity”.
[3] In filing their response the employer raised a preliminary objection that the
complaint breached the mandatory process and timelines for filing a complaint as
described in Regulation 378/07 (the “Regulation”) of the Public Service of Ontario
Act, 2016 (“the Act”). The employer submitted, based on these deficiencies, the
Board should dismiss the complaint without proceeding to hear its merits.
[4] The Board scheduled a mediation session for May 27, 2019. Unfortunately, the
mediation session did not result in a resolution of the complainant’s complaint.
The issue of the employer’s preliminary objections remained outstanding.
[5] Following the mediation session, the Board directed the parties to provide written
submissions with respect to the employer’s preliminary objections.
B. Facts
[6] The facts surrounding this complaint are largely not in dispute and are as follows.
[7] On February 6, 2019 the complainant emailed the employer requesting a leave of
absence for a shift that he was scheduled to work on February 12, 2019. He
further requested that the employer delay the starting time of his February 13,
2019 shift until later in the workday.
[8] As discussed above, the complainant requested these changes to enable him to
attend at a job interview at the employer’s Niagara Detention Centre in Thorold,
Ontario, on February 13, 2019. The complainant received notice from the
employer on February 1, 2019 with an offer of an interview for the position. The
employer scheduled the interview to commence at 10 o’clock in the morning.
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[9] The complainant requested the leave of absence for the February 12, 2019, shift
that began at 1700 and concluded at 0500 hours on February 13th. According to
the complainant, the time to commute from the complainant’s location and the
Niagara Detention Centre in Thorold, Ontario, was approximately 1 hour and
one-half to two hours, leaving, in the opinion of the complainant insufficient time
to reset his “biological clock” in preparation for his interview.
[10] The complainant requested a delay in the start time of the February 13, 2019 in
order to allow him sufficient time to return from the interview and rest before the
commencement of his February 13th shift.
[11] On February 6, 2019, the employer responded to the complainant’s requests.
The Employer advised the complainant that they were declining his request for a
leave of absence for February 12th. Instead, the employer advised that they
would approve the complainant’s use of a vacation day or lieu time to
accommodate his absence.
[12] Further, the Employer offered to provide the complainant with “four hours relief”
although neither party enjoyed a clear understanding as to how the four hours
were to be applied to the situation. Finally, the complainant was advised that he
would still be required to complete an eight-hour shift on the 13th commencing at
the normal start time of 1700 hours.
[13] The complainant responded on February 7th by advising the employer that,
because of their decision not to provide him with a leave of absence he had
decided not to disturb his shifts as scheduled. The complainant went on to note
that he was opposed to using “my own credits” to attend a Ministry sanctioned
interview.
[14] After receiving notice from the Employer declining the leave of absence the
complainant forwarded emails to two other individuals described in paragraphs
29 through 31, below, requesting clarification and assistance with respect to his
request. These email exchanges are dated February 7 and 8, 2019 and
February 7, 2019, respectively.
[15] The complainant did not attend the February 13, 2019 job interview at the
Niagara Detention Centre. On Wednesday, February 13, 2019 he emailed
Jessica Gallagher, Human Resources Business Co-ordinator at MCSCS,
advising that he would not be attending the interview because “it would not be in
my best of interest to safely commute the distance from Brampton (my
residence) to Niagara and return to TEDC (Scarborough) as requested by my
employer”.
[16] On February 15, 2019, the complainant forwarded an email to Deputy
Superintendent (Operations) Perkins. The complainant copied the email to the
attention of Superintendent Timoli at TEDC and Deputy Minister Erry. The
complainant described the situation and indicated that the employer had denied
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his request for a leave of absence. He went on to state that the decision of the
employer had denied him the opportunity to advance his career. He requested
that the situation be resolved by either placing him in a Deputy Superintendent’s
position at the TEDC for a period of 5 months or by providing him with financial
compensation.
[17] On March 8, 2019, the complainant filed a Form 1- Application with the Board.
The Application did not, at that the time of filing, contain a notification to the
Deputy Minister as required by Section 8(1) of Regulation 387/07, (the
“Regulation) of the Public Service of Ontario Act, 2006 (the “Act”). The Board
made the complainant aware of this deficiency immediately after he filed the
Application.
[18] The complainant replied to the Board on March 15, 2019. At that time, a copy of
the February 15, 2019, correspondence between himself and Deputy
Superintendent Perkins was forwarded to the attention of the Board. The
complainant described this document as his “Notice of Intent” as required by the
Regulation.
[19] On March 25, 2019, the Board notified the employer of the Application and on
April 26, 2019, the Employer filed its Form 2 Response. As mentioned in
paragraph 5, above, the parties subsequently filed written submissions
addressing the Employer’s preliminary objections.
C. Employer’s Procedural and Timeliness Objections and the Parties Submissions
[20] The following represents the totality of the employer’s initial and subsequent
reply submissions and the complainant’s submissions.
[21] The employer submits that the complaint should be dismissed because the
complainant’s application failed to adhere to both the mandatory notice and
timelines requirements for the filing of a complaint as described in Regulation
378/07 of the Act.
[22] The employer relied upon the following provisions from the Regulation:
Complaint about a working condition or 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
Notice of proposal to file a complaint
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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.
Period for dispute resolution
9. (1) A complainant is not entitled to file a complaint with the Public
Service Grievance Board until the expiry of the period provided under this
section for dispute resolution.
….
(3) If the complainant was required to give a deputy minister notice of the
proposal to make a 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.
…
(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 provide d for dispute
resolution expires 30 days after the notice was given to the deputy
minister or chair.
[23] In its written submissions the employer stated that the complainant’s Application
failed to adhere to the mandatory requirements set out in sections 4, 8 and 9 of
the Regulation. It was the position of the employer that if the Board was to
determine that the complainant had breached one or all of these sections the
Board lacked the jurisdiction to rectify the complainant’s contravention of the
Regulation. If so determined, the Board must dismiss the Application.
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[24] Counsel submitted that the complainant became aware of the employer’s
decision to deny his leave of absence request on February 7, 2019. Counsel
added that the complainant’s written submissions supported the employer’s
position where he stated that, after becoming aware that his request had been
denied, he emailed the employer and advised that he would be accessing
alternative measures to attend the interview.
[25] Based on that evidence the Counsel submitted that the complainant was
governed by the mandatory time lines set out in sections 8(4) (3) which had been
breached. He failed to adhere to the timelines for filing and therefore the
complaint must be dismissed.
[26] The employer further submitted that Section 8(1) (1) of the Regulation required
the complainant to file a notice with the Deputy Minister. This requirement, in the
submission of the employer, is mandatory and the Board has no jurisdiction to
relieve against any failure to file as required by the Regulation.
[27] With respect to this position, Counsel submitted that the complainant’s “Notice of
Intent” did not meet the requirements described in sections 4 and 8 of the
Regulation. The email dated February 15, 2019, was directed to Deputy
Superintendent (Operations) Perkins and not the Deputy Minister. The notice
was not “directed to the attention” of the Deputy nor did the complainant receive
“confirmation from the Deputy Minister that a Notice of Intent was received.”
[28] Section 8(1) (1) requires that a complainant in this instance be required to
provide notice to “his or her deputy minister.” In the matter before the Board, the
requisite notice was not provided to the Deputy Minister but rather to Deputy
Superintendent (Operations) Perkins. As a result, the notice did not comply with
the mandatory provisions set out in Section 8(1) and the Board must therefore
dismiss the complaint.
[29] Finally, Counsel for the employer submitted that the complaint breached Section
9 of the Regulation. Section 9(1) prohibits a complainant from filing a complaint
with the Public Service Grievance Board until the dispute resolution period
described later in the Section has expired. In the matter before the Board, the
relevant time line is described at Section 9. (5), that being 30 days after the
notice was given to the Deputy Minister.
[30] While not conceding that the February 15, 2019 email that was copied to the
deputy minister constituted proper notice, Counsel submitted that if it was found
to be the earliest date for filing a complaint with the Board would have been
March 17, 2019. The March 8, 2019, filing date fell within the 30-day dispute
resolution period and, as a result, the complaint was filed prematurely with the
Board. Given that the Board lacked the jurisdiction to amend time limits the only
response available to the Board would be to dismiss the complaint.
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[31] In response, the complainant took the position that he had complied with all of
the mandatory timelines and procedural requirements described in the
Regulation. The complainant submitted that the Application was timely for two
particular reasons. First, in response to the employer’s position that he was
aware on February 7, 2019, that the leave of absence had been denied, the
complainant submitted that this was not an accurate description of the events. In
the view of the complainant, an ongoing dialogue continued between himself and
the employer about possible alternative solutions.
[32] The complainant directed the Board to two particular email exchanges, dated
February 7 and 8, 2019 and February 7, 2019. The February 7 and 8, 2019,
exchange is between the complainant and Chad Darrah, Human Resources
Advisor at the Ministry of Government and Consumer Services while the second
email correspondence took place between the complainant and Donata Calitri-
Bellus. According to the information contained in the correspondence Calitri-
Bellus is a Deputy-Director at the Employer’s Central Regional Office.
[33] The complainant contacted Darrah on February 7, 2019, and requested
information about the Employer’s guidelines when an employee requests a leave
of absence and whether his request met those guidelines. Darrah responded the
following day, and advised that requests for leave were determined on a
discretionary basis and suggested that the complainant share all the details
surrounding the request.
[34] With respect to the correspondence between the complainant and Caltri-Bellus
on February 7, 2019, the Complainant sought assistance for approval of his
leave request to attend the interview. He provided the details with respect to the
relevant shift and the location and time of the interview. Caltri-Bellus responded
three hours later and advised, that not only was his request incomplete but he
should be redirecting his request to Senior Administration at the TEDC.
[35] Based on these two email exchanges the complainant submitted that the request
for a leave remained unresolved. Having not heard from anyone in a supervisory
position after that he wrote to Deputy Superintendent (Operations) Perkins on
February 15, 2019, copied to the Deputy Minister, to voice his objection about the
denial of leave of absence request.
[36] The complainant further submitted that he did not file a complaint on February 7,
2019, or soon thereafter, as he believed that the process for providing him with
the leave was yet to be exhausted. In the opinion of the complainant, “any
complaint prior to the matter occurring would be assumption of the fact without
allowing for due process.”
[37] The complainant further submitted that the general practice of the Employer with
respect to leaves of absence requests was significantly different from what he
had experienced in this matter. To that effect, the complainant submitted that the
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leave of absence process was under general review in twenty-one other
instances and suggested his request should be added to this process.
[38] In the submission of the complainant, all of the above facts and supporting
correspondence support his position that he filed the complaint in accordance
with Section 8(3) (1) of the Regulation.
[39] The Complainant maintained that he had provided notice to the Deputy Minister
as required by Section 8(1) of the Regulation. The submission of the
complainant pointed to the inclusion of the Deputy Minister as a copied party in
the February 15, 2019 email to Deputy Superintendent (Operations) Perkins.
This, the complainant submitted satisfied the notice provisions to the Deputy
Minister required by the Regulation.
[40] As a result, the complainant maintained that he had also met the time lines for
filing as described in section 8(4) (3).
[41] Given all of the above, the complainant submitted that the Board should dismiss
the employer’s preliminary objections and proceed to a hearing of the merits of
the Application.
[42] In addition to relying upon the provisions of the Regulation, the Board was
referred to the following authorities for consideration: Taylor v. Ontario
(Community Safety and Correctional Services), 2017 CanLII 65620 (ON PSGB);
Ashdown et al v. Ontario (Community Safety and Correctional Services), 2017
CanLII 16732 (ON PSGB); Hasted/Berezowsky v. Ontario (Community Safety
and Correctional Services), 2016 CanLII 7473 (ON PSGB); Muldoon v. Ontario
(Community Safety and Correctional Services), 2011 CanLII 83724 (ON PSGB);
Stricko v. Ontario (Community Safety and Correctional Services) 2017 CanLII
25425 (ON PSGB); Alemu v. Ontario (Children, Community and Social Services)
2018 CanLII 109223 (ON PSGB).
D. Decision – Preliminary Objections
[43] The Board has carefully reviewed and considered the written submissions and
authorities received from the parties. For reasons that follow, I must conclude
that the complaint initiated by the complainant does not adhere to certain
mandatory requirements set out in Regulation 378/07.
[44] The Board agrees with the employer’s Counsel that the complainant has failed to
comply with section 9. (1) (5). The complainant filed the complaint with the
Board on March 8, 2019 some ten days before the 30-day resolution period
expired on March 17, 2019. As the Board lacks the jurisdiction to amend the
mandatory time limit prescribed in the Regulation the only alternative is to
dismiss the complaint without resorting to a hearing of the merits.
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[45] In coming to this conclusion, the decision should not be interpreted, as
acknowledging that the email copied to the deputy minister on February 15,
2019, constitutes proper notice as contemplated by Section 8. (1) (1). Given that
the Board has determined that the complaint should be dismissed because it was
filed before the dispute resolution period expired, it is not necessary to decide
whether copying the Deputy Minister on an email to a third party constitutes
notice under section 8. (1).
[46] It is indisputable that the Board lacks the jurisdiction to rectify complaints where a
complainant has failed to adhere to certain mandatory timelines set out in the
Regulation. This has been the conclusion of the Board in numerous decisions
such as Jackson v. Ontario (Community Safety and Correctional Services), 2011
CanLII 36564 (ON PSGB), Stricko v. Ontario (Community Safety and
Correctional Services), 2018 CanLII 77340 (ON PSGB), and Hasted
/Berezowsky v. Ontario (Ministry of Community Safety and Correctional
Services), 2016 CanLII 7473 (ON PSGB). These authorities represent the
proposition that once the timelines have been determined to be breached, by the
complainant, the Board is left with no alternative but to dismiss the complaint in
its entirety.
[47] Section 9. (1) of the Regulation is clear and unambiguous. It states:
Period for dispute resolution
9. (1) A complainant is not entitled to file a complaint with the Public
Service Grievance Board until the expiry of the period provided under this
section for dispute resolution. O. Reg. 378/07, s. 9 (1).
[48] Section 9. (5), which is the applicable sub-section in the matter before me is
again clear and unambiguous. It states:
(5) If the deputy minister or chair or chair of the Public Service
Commission, as the case may be, or his or her delegate does not meet
with the complainant within thirty 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).
[49] Based on the agreed upon chronology of this matter, the Board concludes that
the expiration of the dispute resolution process would have been March 17,
2019. The application was filed with the Board on March 8, 2019. It is therefore
untimely.
[50] The complainant’s submissions were virtually silent on this issue. His focus was
on the demonstrating that the email notice of February 15, 2019, constituted
proper notice for the purpose of Section 8. (1). Even if that were found to be the
case, it would not assist him in curing the breach of the mandatory section 9. (1)
(5) timeline.
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[51] As mentioned above, the employer raised two other preliminary objections; that
the complainant had failed to give proper notice to the Deputy Minister pursuant
to section 8. (1) (1) and, further, had breached the timelines described in section
8. (4) (2) of the Regulation. Given the conclusion that the Board has reached
with respect to the 9. (1) (5) breach it is unnecessary for the Board to make a
determination with respect to these two other preliminary objections.
[52] The complaint is hereby dismissed.
Dated at Toronto, Ontario this 23rd day of January, 2020.
“Brendan Morgan”
_______________________
Brendan Morgan, Vice-Chair