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HomeMy WebLinkAbout1986-0773.Thomas et al.90-07-10I ONTAR, EMPLOYES DE IA CO”,wNNE CROWNEMP‘O”EES DEL’ONTARIO 1 Bl.LYLU v (iw , GRIEVANCE CPMMISSION DE ,i:.;;. i “’ / :? . . ,. .! !‘1:!i.! TTLEMENT REGLEMENT I BOARD DES GRIEFS c,y*7 :t;.fi; E,V,CLGk ‘F.FS GR!EVANCE SETXEW.4; I 773/86 IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before . TEE GRIEVANCE SETTLEHENT BOARD BETWEEN BEFORE: F6R TEE GRIEVOR: FOR THE EHPLOYER HEARING: OPSEU (Thomas et al) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) - and - Employer 8. Fisher Vice-Chairperson E. Seymour Member A. G. Stapleton Member N. Luczay Grievance Officer Ontario Public Service Employees Union C. Peterson Counsel Winkler, Filion & Wakely Barristers & Solicitors March 26, 1990 This case involves a determination of the appropriate rate of meal allowance paid to an employee under Section 17 when the meal is taken at approximately 6:00 p.m. but when that time falls in the middle of a regular shift. The grievors are Vehicle Inspectors and Highway Carrier Inspectors. They usually work a regular day shift, however, they occasionally are required to work a shift commencing anywhere from 12~30 p.m. to 3:30 p.m. While on these afternoon shifts they are occasionally required to carry out’ their duties more than 24 km from their headquarters and as such they are entitled to a meal allowance under Article 17. The grievors testified that they took their meal at around 6:00 p.m. and therefore they should be able to claim the dinner rate. The Employer took the position that the meal is a mid-shift meal and as such they are only entitled to the lunch rate which is less than the dinner rate. This payment is subject to an increase in the discretion of the employer if a reasonable meal at the lunch rate was not available. The Collective Agreement only spells out the entitlement of the employees to receive a meal allowance whereas the amount of that meal allowance is set by each Ministry in its policies. The February 1973 policy on meal allowances used the terms “Breakfast, Lunch and Dinner” in explaining the amount by which an employee would be paid. There was no reference to a concept of lunch being the mid-shift break in that policy. This policy of referring to the rates as being ‘Breakfast, Lunch and Dinner” was repeated in the policy dated March 1981. This policy also made the following references to meals and times. -2- “Payment for u meal shall be made when a public servant, who ir not otherwise entitled to compensation either by pay or leave, works for two or more continuous hours of overtime in which ir included a usual meal time unless the meal is otherwise provided”. - “‘Should an employee in category (a) (b) or (c) who is on a trip on MTC business and is on expenses, and who normally would have returned to his headquarters or home by the supper hour be detained beyond supper hour, he may buy a meal and claim its cost on his expense report’: -‘Noon-Meal Lunch Box Alowance” An employee who ir entitled to claim the cost of a noon meal under these regulations may, for reasons such as lack of restaurant facilities reasonably close to the work location, suppiy his own lunch. In this situation the employee may claim an allowance for the noon meal.” (emphasis added) The reference to Breakfast, Lunch and Supper was repeated in the annual rate revision memorandums from 1979 to 1987. On April 29, 1988; the Ministry published a new comprehensive Employee Expense Manual which for the first time used the terms Early, Mid-Shift, or Late Meals. The applicable excerpt from the policy is as follows: “6) Early, Mid-Ship or Late Meals a) A normal mealperiod occurs during: - the two (2 hourperiod immediate&prior to the beginning ofasc hf& led shift ie. early meal - breakfast rate; - the two (2) hourperiod in the middle of a scheduled shift ie. mid-shift meat - lunch rate shtft ie: (ate meJ- dinner rate. - the two 2) hour eriod following the end of a scheduled -3. -3-’ 6) 6) If fhe work or travelperiod begtm or ends beyond the normal If fhe work or travelperiod begtm or ends beyond the normal meal period, thereby, preventing the em loyee from eatin meal period, thereby, preventing the em loyee from eatin at at home during the normal meal period, home during the normal meal period, R R t t e employee may e employee may % % e e compensatt?d for an early or a late meaL - - . NOTE: If overnight accommodations are being reimbursed the above section does not apply. There also is the usual provision for allowing an extra expense in unusual circumstances. The Union is not however basing their case on the denial of special circumstances by the Employer, rather, they claim that the employee is entitled as of right to the dinner rate for the 6:00 p.m. meal. Both parties led evidence as to what the past practice of the Employer was in paying for meals in this situation, however, this was not especially helpful as the evidence differed as to what the past practice actually was. In any event, this Board does not feel that it is necessary to look at the past practice of the parties in order to interpret how the pre-1988 rules should be interpreted. It is important to realize that in this case we are talking about grievors who normally work day shifts and thus would normally take their “mid-shift break” at 12:OO noon or thereabouts. It is only infrequently that they work the afternoon shift so that their “mid- shift break” would correspond to the 6:OO p.m. time slot. It would therefore not be likely that the grievors would adjust their eating Schedule on the few days a month that they would work the afternoon shift. In other words, it is likely that they would have had their breakfast in the morning, their lunch (i.e. the lighter meal) at noon, and their supper (i.e. the heavier meal) at 6:00 p.m. Furthermore, the constant and repeated references to the terms “Breakfast, Lunch and Dinner”,in the policies and updates would lead a reasonable person to interpret this policy as referring to the ndrmal times of the day when these meals are eaten, that is breakfast in the morning, !unch in the -4. early afternoon and dinner in the evening. The further references in the pre-1988 policy to the “supper hour”, etc. only reinforces this interpretation. This Board therefore finds that the grievors are entitled to reimbursement at the dinner rate for all those meals eaten in the evening hour prior to April 29, 1988, on the days whey they previously only received reimbursement at the lunch rate. However, after April 29, 1988, the Employer changed (they would say “clarified”) the rules so that now it is clear that the policy would only call for reimbursement at the lunch rate for all meals taken in the middle of a scheduled shift, no matter what time of the day or night this occurs. The parties have agreed that this Board is properly seized to rule on the enforceability of this April 29, 1988, policy as this is in effect a continuing grievance. The Union’s position is that the April 29, 1988, policy is contrary to Article 17.2.2 of the Collective Agreement in that the employer is obligated to pay the employee’s reasonable cost of the meal during a “normal meal period”. The Union states that this is a reference to “clock” times and not times within a shift so that the Employer is bound by the agreement to pay the various rates in accordance with the time of the day the meal is eaten. The reason behind the different rates for breakfast, lunch and dinner is to recognize that restaurants charge different amounts for a typical breakfast, lunch or dinner. The Employer takes the position that it is up to management to determine the appropriate rate of reimbursement and when the rate applies. This decision is not open to Board review as to its correctness although it may be open to review as to its reasonableness, just as this Board often reviews the reasonableness of the employer’s decisions under the compassionate leave provisions of the Collective Agreement. The employer submits that the scheme set forth in the April 29, 1988, memo is a reasonable one in that it: -5- a) is easy to administer as one can readily tell if a meal is taken in the middle of a shift whereas one cam-rot always tell what a normal meal time is; b) it eliminates the necessity of drawing a strict dividing line between when lunch ends and dinner begins; c) it covers all 24 hours of the day; d) it treats all employees having a mid-shift break equally, i.e. they all get $7.00. This Board is satisfied that the reasons put forward by the employer to justify its new 1988 rules are within the realm of a reasonable management decision and therefore if the case were to turn on this point, the grievance would fail in relation to the post 1988 claims. However, the Board is not persuaded that it is consistent with the terms of Article 17.2.2 to apply the 1988 policy in the way proposed by the employer. It is not proper to say that it is completely open to the employer to determine the quantum of meal reimbursement as they are contractually bound by virtue of Articles 17.2.2 and 17.5 to reimburse employees for the reasonable cost of these meals in the locality in which they are eaten. Although the employer issues a memo each year in setting the rates, it would be open for the Union to grieve those rates if they could show that the rates were not reasonable for the locality. Similarly, it is not open for the employer to unilaterally redefine the meaning of the words “normal meal periods” in Article 17.22. Although it is trite to say that the whole world does not eat breakfast in the morning, lunch in the early afternoon and dinner in the evening, it is equally obvious that generally speaking restaurants serve their menu selections according to these set times. -6- In essence, the employee working a shift other than a day shift who is obligated to eat her meal at a restaurant is forced to choose from the restaurant menu facing her when she sits down at the table. She may have just woken up but if it is 6:00 p.m., she probably won’t get scrambled eggs and toast, rather the restaurant v&l force her to choose between pork chops or pasta. The employer’s 1988 scheme sets up an unreal world in which it is assumed that restaurants will match their meal availability to the individual shift schedules of its patrons. Now this may be true for the occasional all night diner or fast food establishment but it is not generally true of most restaurants. Furthermore, if the employer’s 1988 policy were allowed to stand, then what meaning would the words “a normal meal period” serve ? The Employer could argue that the reference to “normal” means in reference to a shift in that a person normally eats his breakfast before a shift, his lunch during the shift and dinner after the shift. However, this only applies to someone working on a regular day shift and doesn’t cover persons like the grievors who occasionally work afternoon shifts. Moreover, if this interpretation was correct, it is submitted that the words “normal meal period” would be unnecessary and the article could simply have read as follows: “Cost of meals may be allowed only...if an employee eats a meal while she is travelling on government business...” Since it is rule of construction and interpretation that all words in a clause should be read as if they were intended to have a meaning, it is incumbent on this Board to give some meaning to the words “a normal meal period”. It is the view of this Board that the normal and intended meaning of the words “normal meal period” in the context of a clause seeking to reimburse employees for the ‘actual cost of a restaurant meal is that it relates to the times of the day that restaurants generally serve breakfast, lunch and dinner and that a scheme such as that set forth in the -7. 1988 policy which utilizes the concept of determining the meal rate in accordance to the time of a meal in relation to a specific shift, is contrary to Article 17 of the Collective Agreement. Having said this, the Board appreciates that there are distinct administrative advantages in the 1988 policy, however, administrative convenience and clarity are never allowed to overrule the terms of a Collective Agreement. The grievance is therefore to be allowed in full. The grievors are to be paid compensation in accordance with this decision for all meal claims filed after 20 days before the filing of the grievance. No interest is to be paid on these sums, if the amounts are paid within 60 days of the release of this award, however, if they are not so paid, then interest shall accrue at the rate of 12% from the date of release of this award until payrnent.~ This Board will remain seized of any matters arising out of the implementation or interpretation of this award. DATED this 10th day of JUIY 1990. Barry B. Fisher - Vice Chairperson E. Seymour I A. Stapleton