HomeMy WebLinkAboutP-2022-2913.Wallace.22-10-13 Decision
Public Service
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Commission des
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Tél. : (416) 326-1388
PSGB# P-2022-2913
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Wallace Complainant
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian Smeenk Chair
FOR THE
COMPLAINANT
Judith Wallace
FOR THE EMPLOYER Caroline Cohen
Treasury Board Secretariat
Labour Practice Group
Senior Counsel
SUBMISSIONS August 16, 2022
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Decision
[1] The Complainant Judith Wallace’s was Deputy Superintendent, Operations and
Compliance at the Employer’s Central North Correctional Services (“CNCC”) in
Penetanguishene, Ontario. This was her home position. In 2019 she was
temporarily transferred to the Central East Correctional Centre (“CECC”) in
Lindsay, which she refers to as a “secondment”. She filed this Complaint with the
Board on May 20, 2022.
[2] In the Complaint, Ms. Wallace alleges that she was promised that the secondment
would last until her normal retirement in late 2022 or 2023. She complains that in
ending the secondment before then, the Employer not only breached the promises
made to her but also failed to accommodate her on the basis of disability and
family status (elder care), and discriminated against her. She also complains of
harassment by a peer that allegedly took place in October 2021. Finally, she
complains of an ongoing failure to accommodate her after the temporary transfer
ended and discriminatory treatment as compared with other employees.
[3] The Employer denies all of Ms. Wallace’s allegations on their merits. It also raises
a preliminary objection that Ms. Wallace’s notice of proposal to file a complaint
with the Board (“NOP”) was not given to her Deputy Minister within the mandatory
time limit for doing so, and the Board is therefore without jurisdiction to consider it.
[4] This decision deals with the Employer’s preliminary objection.
[5] For the reasons that follow, I have concluded that the first two elements of the
Complaint are untimely and the Board does not have jurisdiction to deal with them.
The third element of the Complaint, however, regarding whether the Employer
fulfilled its duty to accommodate after the “secondment” or temporary transfer
ended, is not untimely and is properly before the Board.
The Complaint
[6] The essence of Ms. Wallace’s allegations are found in the following passage of her
Complaint:
In 2019 I started a secondment to CECC from CNCC due to a disability and elderly [sic]
care for my father who lives in Peterborough. When I arrived at CECC and asked how
long I was here for I was told by the superintendent at the time that I was here until I
retired (2022-23). I also asked the now superintendent and he stated the same thing that I
was at CECC until I retired. Because of this I gave up my apartment in Penetanguishene
and bought my parents’ house in Peterborough closer to family. Now they will not honour
my accommodation and want me to drive 2 1/2 - 3 hours one way to work at CNCC from
my home, in Peterborough, everyday which due to my disability I can not manage. … I
have asked again to be accommodated closer to my home, CECC, with no response since
January 17, 2022 so I am sitting home willing to work. …. I feel this is a direct violation of
the Ontario Human Rights policy on Ableism and Discrimination based on Disability as
well as a duty to accommodate policy….
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October 28, 2021 I complained to the superintendent that I had an incident with a peer,
not the first one and I was not the only person….This man was in my office, closed the
door and would not let me out until I threatened to call police.... This is a human rights
issue as he was bullying me due to being female and due to my age as he always was
telling me to retire.
I also feel discriminated against due to the fact that an OPSEU member is accommodated
immediately pending documentation and it has been almost 3 months waiting for me. I
have to say that in the mean time I have had knee surgery so it has given my employer
time to accommodate.
[7] Ms. Wallace seeks full compensation for the period from July 31, 2022 (when she
actually retired) to December 31, 2023 (when she asserts she would have retired if
she’d been accommodated). She also seeks damages for “added stress and
suffering” in the amount of $15,000.
The Employer’s Preliminary Objection
[8] The Employer submits that the Board lacks jurisdiction to hear the complaint
because the NOP was given to Ms. Wallace’s Deputy Minister outside the time
limits specified in section 8(4)(3) of Regulation 378/07 (“the Regulation”) under the
Public Service of Ontario Act, 2006, S.O 2006, c.35 Sched. A (“PSOA”). That
section requires that an NOP about a working condition or term of employment
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.”
[9] The Employer submits that the first main element of the Complaint, the termination
of the temporary assignment at CECC, crystallized on December 8, 2021. This is
when, the Employer asserts, Ms. Wallace was advised that she had not been
successful in a competition for one of several permanent Deputy Superintendent
positions at CECC. It is alleged that Ms. Wallace was told that she had to obtain
one of the posted positions in order to remain at CECC. It is further argued that
there is no other “triggering event”. Further it is argued that Ms. Wallace did not
ask for family status accommodation until April 6, 2022, the same day she gave
her Deputy Minister her NOP. Accordingly, the only crystalized term and condition
of employment complained of at the time of the NOP was the termination of the
temporary assignment at CECC on December 8, 2021. As more than 14 days
elapsed between December 8 and the filing of the NOP on April 6, 2022, the
Employer argues the Complaint should be dismissed on a preliminary basis. It is
asserted that the Board has no jurisdiction to hear the complaint on its merits.
[10] Regarding the second main element of the Complaint, the allegations of
harassment by a peer, the Employer submits that it is similarly untimely and must
be dismissed on the same basis. As that harassment event allegedly occurred on
October 28, 2021 and there was no complaint to the Employer until April 6, 2022,
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that part of the Complaint also does not comply with section 8(4) of the Regulation.
The Board is therefore without jurisdiction to deal with this element also, submits
the Employer.
[11] Finally, regarding the third main element of the Complaint, the ongoing lack of
accommodation and differential treatment as compared with a member of the
Ontario Public Service Employees Union (“OPSEU”), the Employer submits that it
should also be dismissed on the basis that it is untimely, based on the same
reasoning as applies to the first element discussed above.
[12] In support of its arguments, the Employer relies on St. Amant. v. Ontario (Ministry
of Community Safety and Correctional Services) 2013 CanLII (ON PSGB) 4673
(Carter) at para. 4 – 10 and Hasted v Ontario (Community Safety and Correctional
Services), 2016 CanLII 7473 (ON PSGB) at para. 24.
[13] Ms. Wallace filed no response to the Employer’s submissions on timeliness.
Analysis and Decision
Legal Framework
[14] Section 4 of the Regulation sets out the conditions that must be met for filing a
complaint regarding working conditions 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,
(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;
(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.
[emphasis added]
[15] Section 8 in turn provides that a notice of proposal to file a complaint with the
Board about working conditions or a term of employment (“NOP”) must be given to
the employer “within 14 days after the complainant becomes aware of working
condition or term of employment giving rise to the complaint.”
[16] Section 9 then provides for a dispute resolution period of up to 30 days (the time
may vary depending on the actions of the parties).
[17] Section 10 then dictates that a complaint must be filed with the Board within 14
days after the expiry of the dispute resolution period.
[18] The Board has well-established case law that makes it clear that if a complainant
fails to adhere to the mandatory procedures and timelines set out in the
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Regulation, the Board has no jurisdiction to hear the complaint and it must be
dismissed. For example, in the St. Amant case cited by the Employer, the Board
explained as follows at paragraphs 8 and 10:
[8] …the Board has held that the combined effect of sections 4 and sections 8 of as
Regulation 378/07 was to make proper notice [to the DM] of a complaint a matter
going to its jurisdiction. In these two cases, however, there had been a complete
failure to give any notice while in this case notice had been given but given outside
the required time limits. The Board does not consider that this difference changes
the outcome for this complaint. Given the mandatory language of the 14 day time
limit set out in section 8, the Board must conclude that notice given within that time
limit is also just as much a precondition for it to assume jurisdiction over a matter as
the requirement to give the notice.
…
[10] There still remains the issue of whether the PSGB has any authority to extend
the time limits set out in section 8 of Regulation 378/07..… 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.
[19] St. Amant was decided in 2013. It has since been followed consistently by the
Board. See for example recent decisions like Bazger v Ontario (Solicitor General),
2021 CanLII 71621 (ON PSGB) and Preston v Ontario (Education), 2021 CanLII
71622 (ON PSGB) and the decisions referenced therein.
[20] In deciding how to apply the strict time limit regarding the giving of the NOP, the
Board must determine when “the clock starts ticking”. This is often referred to as
the date when the complaint ‘crystalized’. As stated above, under section 8(4) of
the Regulation, the time for giving to the Employer an NOP is, “within 14 days after
the complainant becomes aware of working condition or term of employment
giving rise to the complaint.” Thus, a determination must be made about when the
requisite level of awareness occurs to start the 14 day clock. As pointed out by the
Employer, this concept is aptly described in Hasted v Ontario (Community Safety
and Correctional Services), 2016 CanLII 7473 (ON PSGB) at para. 24 as follows:
[24] The complainants acknowledge that they accepted the employer’s recitation of
their terms of employment at the outset of their assignment. The complainants had
expressly been informed that, allegedly for reasons having to do with scheduling at
TCI, they were not entitled to the compensation they now claim. In other words, they
were aware of the working condition or term of employment – that is, that they would
be required to perform on call duties and further, that they would not be specifically
compensated for that work. In addition to understanding the employer’s position,
they were then in a position to investigate and challenge that position. Any complaint
about the fact that they were not going to be specifically compensated for such
duties crystallized at that time, at the outset of their assignment. Similarly, in St.
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Amant, supra, the Board found that the time limit ran from the date that the
complainant understood that the employer’s delay in responding to her request for a
leave of absence rendered her unable to utilize the leave. The Board found that the
employer’s failure to respond by a given date “brought the matter to a head” at that
time (para. 9).
The Peer Harassment Allegation
[21] I will deal first with the second main element of the Complaint, the allegation
regarding harassment by a peer. It can be dealt with succinctly.
[22] On the face of both Ms. Wallace’s NOP and the Complaint filed with the Board,
this harassment allegedly occurred on October 28, 2021. It is stated that, “these
were all dealt with by saying sorry, this is not right…” There is no suggestion that
the harassment continued after that.
[23] This incident therefore clearly occurred well beyond 14 days before the NOP was
given to the Employer on April 6, 2022. The NOP therefore does not comply with
section 8(4) of the Regulation with respect to this allegation.
[24] The Board therefore has no jurisdiction to consider this element of the Complaint.
The Ending of the Temporary Assignment
[25] Turning next to the first main element of the Complaint, the core of it is the
allegedly improper cessation of Ms. Wallace’s temporary assignment as a Deputy
Superintendent at CECC. The Employer asserts that she became aware on
December 8, 2021 that the temporary assignment was coming to an end. The 14
day clock thus started ticking then, it argues. And the Complaint was lodged long
after the 14 days had expired.
[26] The relevant facts, to the extent they are not in dispute, are as follows:
a. On July 15, 2019, Ms. Wallace wrote to then-Regional Director, Northern
Region, Kathy Kinger, requesting a transfer to CECC for compassionate
reasons. She advised Kinger that that her father was experiencing health
issues (COPD and dementia), and while her brother had been the main
caregiver for their father to that point, her brother was now having to deal
with her nephew’s health issues as well. The request also indicated that an
accommodation to work out of CECC would allow her to be closer to her
family, who lived in that area.
b. The Employer then agreed to place Ms. Wallace in a Deputy Superintendent
of Operations position at CECC on a temporary basis. She started that
temporary assignment on November 12, 2019. It was stated to have an End
Date of “November 8, 2020 with possibility of extension.”
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c. The Temporary Assignment Agreement which Ms. Wallace signed has a
provision entitled, “Extension of Assignment”. It provides as follows:
The assignment may be extended for an additional period of time upon the
agreement of undersigned (Receiving and Releasing Ministries and the Employee).
d. The Agreement also provided for what would occur on expiry of the
assignment, in the following terms:
At the conclusion of the temporary assignment, the Employee will return to the
home position at the home position’s current classification level, and at the salary
the Employee would have attained had the assignment not occurred.
e. The term of the temporary assignment was extended several times. During
these extensions Ms. Wallace held the following positions at CECC:
· November 12, 2019 – December 16, 2019 - Deputy Superintendent, Operations
· December 16, 2019 – June 8, 2020 - Deputy Superintendent
· June 8, 2020 – Jan. 25, 2021 - Deputy Superintendent, Programs
· Jan. 25, 2021 – Jan. 17, 2022 - Deputy Superintendent, Compliance & Security
f. In the fall of 2021, CECC held a competition for three (3) Deputy Superintendent
positions. The Employer asserts that the then-Deputy Superintendent of
Administration at CECC (“Merriam”) advised Ms. Wallace that she needed to
compete and be successful in this competition in order to remain at CECC. It is
not clear whether Ms. Wallace agrees with this assertion.
g. In any event, Ms. Wallace applied for one or more of these Deputy
Superintendent positions. She was not successful. She was advised of this
by way of an email from Merriam on December 8, 2021. He concluded that
email by saying, “…we can work through next steps upon your return.”
h. Ms. Wallace then went on sick leave. The evidence is not clear whether she
worked at all during the next month, but in any event she started an ongoing
disability leave (“STSP”) on January 16, 2022. This is coincidental with the
end of her last temporary assignment at CECC. She never returned to work.
i. It is common ground that, had she not commenced disability leave, the
Employer’s expectation was that Ms. Wallace would return to her home
position on or about January 17, 2022. She was aware of that prior to the
start of her STSP.
j. Ms. Wallace advised the Employer that she was physically unable to drive
the 2 ½ hours commute each way from Peterborough, where she now lives,
to Penetanguishene, where her home position is, due to her medical
condition.
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k. Starting on December 13, 2021 Ms. Wallace submitted medical notes from
various doctors regarding her fitness to work and her fitness to make the long
commute. The medical advice was not always consistent. The Employer
responded with various requests for clarification. These included several
questionnaires which the Employer requested be completed by Ms.
Wallace’s treating physicians.
l. The parties were unable to come to agreement either as to any
accommodation involving another position at CECC or elsewhere, or whether
Ms. Wallace was able to commute to CNCC to return to her home position.
m. Without coming to any resolution of those issues and while Ms. Wallace
remained on leave, she submitted her retirement papers to take effect July
30, 2022. She asserts this was done against her will.
[27] On the record before me, it is unclear as to precisely when Ms. Wallace was
advised that her temporary assignment to CECC was coming to an end. There is
no documentation showing that she was advised before December 8, 2021. The
email of that date advising her that she was not successful in the competition does
not clearly state that that meant the temporary assignment was about to end.
[28] Despite that lack of clarity, it is common ground that, had she not commenced sick
or disability leave, the Employer’s expectation was that Ms. Wallace would return
to her home position on or about January 17, 2022. She was aware of that before
she began her STSP at that time.
[29] She knew that she would then be expected to attend work in Penetanguishene if
she was not on some kind of leave. In an email to Superintendent Felicia Hooper
dated March 9, 2022, Ms. Wallace recapped events as follows:
I was off on sick leave for three weeks, January 14, 2022 to February 9, 2022 Using
my sick time and vacation time as the employer refused to accommodate me by
letting me continue to work at Central East Correctional Centre (CECC). CECC is
close to my home and only a 30 minute drive for me so this would greatly improve my pain
for working. (emphasis added)
[30] It is therefore clear that Ms. Wallace became aware of the working condition or
term of employment giving rise to the first element of her complaint no later than
January 16, 2022, when she began her STSP leave. She was then aware that the
temporary assignment at CECC had come to an end. She was aware that she
was expected to report for work the next day, assuming she was fit to work, at her
home position in Penetanguishene. The complaint crystalized by then, at the
latest. This is the latest date that the 14 day clock began ticking.
[31] As more than 14 days expired between January 16 and April 6, 2022, when the
NOP was given to the Employer, it was untimely. It was not given in accordance
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with section 8(4) of the Regulation. The Board therefore does not have jurisdiction
to consider this element of the Complaint.
The Other Accommodation Elements of the Complaint
[32] The above findings do not end the matter. The third main element of the
Complaint involves Ms. Wallace’s allegation that from and after January 17, 2022,
her accommodation requests were not properly dealt with by the Employer. She
alleges that she had, “… no response since January 17, 2022 so I am sitting home
willing to work.” She identified work that she felt was available and that she was
qualified to perform. She made the further allegation that OPSEU members were
accommodated “immediately pending documentation and it has been almost 3
months waiting for me.” [sic]
[33] In essence, Ms. Wallace asserts that, quite apart from the decision to end her
temporary assignment on or about January 16, 2022, the Employer has not fulfilled
its duty to accommodate to the point of undue hardship, in accordance with the
Human Rights Code, RSO 1990, c.H.19 as am. and its own policies, she asserts
that this constitutes discrimination, including differential treatment as compared
with members of OPSEU.
[34] A different analysis regarding the timeliness of the NOP must be applied to this
element of the Complaint.
[35] On its face, the NOP addresses the interactions – or perceived lack of response
from the Employer -- between January 17, 2022 and the date of the NOP. It
speaks in the present tense, to recent events. Ms. Wallace states that, “I have
asked again to be accommodated closer to my home, CECC, with no response
since January 17, 2022 so I am sitting home willing to work. There are 4 deputy
positions open at this time that are being covered by 2 sergeants, 1 staff
sergeant and a volunteer coordinator. I would think that a confirmed deputy would
take priority over a union employee or a sergeant…” Her NOP goes on to state,
“My situation has not changed; however it is more critical now that I be
accommodated….” (emphasis added)
[36] Furthermore, in the above-mentioned email to Superintendent Felicia Hooper
dated March 9, 2022, Ms. Wallace had re-stated her request for accommodation.
She stated as follows:
I am writing this letter to submit a request for accommodation in my workplace. I
have pain in my knees and my back. Prolonged sitting and standing is causing
increased pain and is decreasing my mobility. I would like to request, again,
accommodation to help with my disability and decrease the pain caused by my back
and knee conditions by working closer to home.
[37] On March 15, 2022 the Employer provided Ms. Wallace with a questionnaire to be
completed by her orthopaedic surgeon. On April 1, 2022 she returned that
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questionnaire completed by the doctor. The parties are not in agreement, it
appears, as to the conclusions that should be drawn from that medical evidence in
the context of the medical evidence previously submitted by Ms. Wallace.
[38] On April 6, 2022, the same date that the NOP was given to the deputy minister,
Ms. Wallace advised Superintendent Felicia Hooper that she required family status
accommodation related to the care of her father, who had been diagnosed with
cancer and was undergoing treatment.
[39] It is therefore clear that as of the date of the NOP, there remained live issues
regarding Ms. Wallace’s requests for accommodation, on grounds of both disability
and family status. While the original temporary transfer had come to an end and
that was no longer a live issue as of April 6, 2022, Ms. Wallace was still pursuing
other avenues of accommodation at that time. Communications were ongoing.
There were still live issues as to whether Ms. Wallace qualified for other
accommodations, and whether the Employer was making sufficient efforts to
accommodate. There was a live issue as to whether the Employer was, at the time
of the NOP, treating Ms. Wallace differently than other employees represented by
OPSEU.
[40] The NOP and this Complaint are therefore not untimely with respect to this third
element of the Complaint, i.e. whether the Employer fulfilled its duty to
accommodate on the basis of disability and family status, after the temporary
transfer ended on or about January 16, 2022.
Conclusion
[41] To summarize, I have concluded as follows:
a. The Board does not have jurisdiction to deal with the first element of the
Complaint, the allegation that Ms. Wallace’s temporary assignment as a
Deputy Superintendent at CECC was improperly terminated on or about
January 16, 2022, since the NOP was not given in a timely manner in
accordance with the Regulation regarding that element. The Employer’s
preliminary objection regarding that element is upheld.
b. The Board does not have jurisdiction to deal with the second element of the
Complaint, the allegation regarding harassment by a peer, which allegedly
occurred on October 28, 2021, since the NOP was not given in a timely
manner in accordance with the Regulation regarding that element. The
Employer’s preliminary objection regarding that element is upheld.
c. The Board has jurisdiction to deal with the third element of the Complaint, i.e.
whether the Employer fulfilled its duty to accommodate on the basis of
disability and family status after the temporary transfer ended on January 16,
2022. The Employer’s preliminary objection regarding that element is
dismissed.
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[42] This case is accordingly referred to the Registrar, to schedule a Case
Management Conference with the parties to determine a hearing process to most
effectively deal with the remaining issues.
Dated at Toronto, Ontario this 13th day of October, 2022.
“Brian Smeenk”
_______________________
Brian Smeenk, Arbitrator