FPSLREB Decisions

Reasons for Decision

Introduction

1 On January 23, 2007, Mr. Godwin Jogarajah, filed two complaints (files 2007-0040 and 2007-0054) with the Public Service Staffing Tribunal (the Tribunal) under section 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

2 On February 19, a motion to dismiss the complaints was filed on behalf of the Chief Public Health Officer of the Public Health Agency of Canada (the respondent) on the ground that the complainant failed to make proper complaints in accordance with section 11 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (the PSST Regulations). The motion is dismissed.

3 In accordance with section 8 of the PSST Regulations, the Tribunal consolidates the two complaints for the purposes of this decision.

Issues

4 The Tribunal must determine the following issues:

1. Is section 9 of the PSST Regulations applicable?
2. Should the Tribunal dismiss the complaints because they do not contain the information required under section 11 of the PSST Regulations?

Background

5 The complainant filed a complaint on December 5, 2006. However, the Notification of Appointment or Proposal of Appointment was not posted on Publiservice at the time of his complaint.

6 The complaint was dismissed on February 5, 2007 because it was premature. The Tribunal referred to its decision in Czarnecki v. Deputy Head of Service Canada et al., [2007] PSST 0001, where it found that an employee’s right to file a complaint under section 77 of the PSEA is conditional on an appointment or proposed appointment being made.

7 The complainant then filed these complaints on January 23, 2007. He further sent by facsimile on January 29, copies of the Notification of Appointment or Proposal for Appointment that were posted on Publiservice pertaining to each of these complaints.

Arguments of parties

8 In support of its motion to dismiss, the respondent submits that the complainant failed to meet certain requirements of section 11 of the PSST Regulations. First, the complaints do not include a reference to the provision of the PSEA under which the complaints were made. Secondly, the complaints do not include a full factual description of the events, circumstances or actions that gave rise to the complaints.

9 In answer to the respondent’s motion to dismiss, the complainant argues that his initial complaint was filed prematurely because he was not informed when the process was completed as he is no longer employed by the respondent and was not able to view the postings on Publiservice.

10 He also states that the respondent has not been cooperative in providing him with the required information and adds “I have only been able to provide minimal information pertaining to this process.” He attached a document that contained additional information on the nature of his complaint.

Analysis

Issue I: Is section 9 of the PSST Regulations applicable?

11 The respondent’s motion to dismiss is based on subsections 11(g) and (h) of the PSST Regulations which read as follows:

11. A complaint must be filed with the Executive Director in writing and must include
(...)

(g) a reference to the provision of the Act under which the complaint is made;

(h) a full factual description of the events, circumstances or actions giving rise to the complaint, if known by the complainant;

(...)

(emphasis added)

12 The purpose of the complaint form is to provide sufficient information to the respondent on the nature of the complaint. This allows the respondent to be able to identify the other parties and begin its own internal process to gather information to respond to the complaint and prepare for the exchange of information. Preferably, the complaint form will contain as much information as possible, including copies of any advertisements and notifications related to the complaint.

13 The Tribunal notes that the complainant checked off the Internal Appointment (section 77) box for “Type of Complaint” on both complaint forms. It would have been preferable if the complainant had checked off the “Advertised process” box as well. However, the parties and the Tribunal are fully aware that the complaints relate to an advertised process as a copy of the Publiservice notice was provided by the complainant.

14 The Tribunal finds this type of defect is one that can be corrected under section 9 of the PSST Regulations:

9. No proceeding is invalid by reason only of a defect in form or a technical irregularity.

15 Where a complaint filed with the Tribunal contains a defect in form, a technical irregularity or both, which can be corrected under section 9 of the PSST Regulations, the Tribunal complaint process will continue. It is, of course, for the Tribunal to determine whether such a defect in form or a technical irregularity has occurred.

16 The Tribunal’s decision in Richard v. Deputy Minister for Public Works and Government Services Canada et al., [2007] PSST 0002, provides an example where a defect in form did not affect the nature of the proceedings. In this case, the plaintiff did not specifically request an extension to file her complaint as required by the Tribunal. However, she provided the Tribunal with the explanations for the delay, which is usually consistent with making a request to the Tribunal, to which the respondent objected. The Tribunal addressed it as a request to extend timelines.

17 A technical irregularity is akin to what was sometimes called a “clerical error” in the past. It was explained in The Dictionary of Canadian Law, 3d. ed., s.v., “clerical error” as “an error in a document which can only be explained by considering it to be a slip or mistake of the party preparing or copying it.” It is usually a minor error or irregularity.

18 The fact that the complainant did not check off the second portion of the box under section 77 on the complaint form does not mislead the Tribunal or the respondent as to the nature of the complaint. It can be viewed as a slip or mistake of the complainant under section 9 of the PSST Regulations.

Issue II: Should the Tribunal dismiss the complaints because they do not contain the information required under section 11 of the PSST Regulations?

19 The respondent’s second argument is that the complaint does not meet the requirements of subsection 11(h) of the PSST Regulations in that a full factual description of the events, circumstances or actions giving rise to the complaint was not provided.

20 In his submissions, the complainant explained that the reason why there is a lack of information in the details of the complaint is due to a lack of cooperation by the respondent.

21 It is noteworthy that subsection 11(h) of the PSST Regulations contains the words “if known by the complainant” at the end of the sentence. The Tribunal therefore recognizes that complainants may not have much information when they initially file complaints. This is the reason why the allegations are to be filed after the exchange of information between the complainant and the respondent. The allegations should be complete and provide the opportunity for the respondent to fully answer the complaint against it.

22 The Tribunal recognizes that the complaint form was not as complete as the respondent would have preferred. However, it likely did not come as a complete surprise to the respondent when the complainant filed the two complaints as his previous complaint was dismissed for being premature.

23 In summary, the objection under subsection 11(g) of the PSST Regulations is corrected by section 9 of the PSST Regulations. It does not invalidate the complaint. The objection concerning the lack of details under subsection 11(h) of the PSST Regulations is explained by the complainant and the Tribunal is satisfied with this explanation. The lack of details in the circumstances of this case does not invalidate the complaint. The complainant provided sufficient information for the respondent to be able to proceed with the complaint. The respondent will have the opportunity to prepare its reply following receipt of the complainant’s allegations.

Decision

24 The motion to dismiss is denied.

25 The Tribunal notes that the exchange of information has taken place. The complainant has 10 days from the date of this decision to provide his allegations and the usual timelines will now resume.

Sonia Gaal

Vice-Chair

Parties of Record

Tribunal Files:

2007-0040 & 0054

Style of Cause:

Godwin Jogarajah and the Chief Public Health Officer of the Public Health Agency of Canada et al.

Hearing:

Written request; decided without the appearance of parties

Date of Reasons:

April 10, 2007