Loading...
HomeMy WebLinkAbout1986-1485.Vernon.88-03-17ONTpJllO CKWN EWIOVEES GRIEVANCE W;bEMENT IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Pat Vernon) Grievor ,-.. and The Crown in Right of Ontaiio (Ministry of Transportation) Employer M.V. Watters Vice Chairman H. O'Regan Member M.F. O'Toole Member I. Roland Counsel Gowling & Henderson Barristers & Solicitors K.B. Cribbie Staff Relations Officer Human Resources Branch Ministry of Transportation January 6, 1988 DECISION This proceed ,i dated December 11 I follows: ng arises from the grievance of Ms. Pat Vernon 1986, the material part of which reads as "STATEMENT OF GRIEVANCE - for .ive I grieve that I have been denied compensation use of my own automobile on the Employer's business contrary to the terms of the Collect Agreement, specifically, but not exclusively, Article 22. SETTLEMENT DESIRED - That I be compensathd in accordance with the terms of the Collective Agreement. II (Exhibit #2) The facts~ surrounding the grievance were not significantly in dispute and may be stated as follows: Ci) At all material times, the grievor was employed with the Ministry of Transportation and Communications as a Construction Technician. This work tias described as being office related; The designated headquarters for the grievor was the Lorneville Patrol Yard. Her daily work, however, was performed at Kirby. For purposes o,f calculating mileage, the round trip distance between these locations was established at one hundred and forty two (142) kilometres. (ii) The grievor returned to work on November 3, 1986, after having been away for a period of maternity leave. On this resumption of employment, she was permitted to travel to and from work "within" her eight (8)hours. The grievor testified that she left for Kirby each morning at or before 6:50 a.m. This enabled her to drop her new born son off at the day-care centre and then proceed to the site such that she could arrive there prior to the starting time of 8:00 a.m. She was credited with a travel time of one hour and ten minutes per single trip. As her travel was calculated "within" her eight (8) hours of daily employment, the grievor was entitled to leave for home at 2:40 p.m., this being some two hours and twenty minutes prior to the end of the formal eight (8) hour work day. This arrangement had been authorised by the Employer. It is apparent from same that while the grievor was paid mileage for the use of her own vehicle, the employer was not obligated to pay travelling time in that the travelling did not fall outside of working hours. (iii) On or about November 12, 1986, the grievor was informed by Mr. John Cameron, Senior Project Supervisor - Construction, that henceforth she would have to drive with a Mr. Brian Speedier a. construction inspector, who had the same headquarters and worksite ym Unlike the grievor, Mr. Speedie actually required the n -2- use of his automobile during the day for purposes of his employment. His regular shift was 8:00 a.m. to 5:00 p.m. The material difference between the work days of these two employees was that, given the nature of his responsibilities, Mr. Speedie was regularly required to work until 5:00 p.m. While, he was occasionally in a position to "travel within his eight hours", this did not appear to be the norm. Because of his general inability to leave the work site until the end of the regular day, the Employer was required to compensate the grievor with two hours and twenty minutes of travel time "outside" of her shift. (iv) From the testimony of Mr. Cameron, it would appear that this arrangement for car pooling was entered into for reasons of policy and economy. With both employees having the same hours of work and the identical headquarters and worksite, Mr. Cameron deemed it advantageous that they drive together in Mr. Speedie's automobile; This would create a,savings in the payment of mileage; for the employer would only be required to pay one, rather than two, employees for such benefit. The arrangement, however, necessitated that the grievor remain on site for most days until 5:00 p.m. The employer, as noted above, therefore had to pay her for travel time outside of the shift. In the final analysis, approximately $9.00 per day was saved by such change. It was conceded by Mr. Cameron that the change was not motivated by the demands of the grievor's position. At the time of implementing the arrangement, the supervisor did not have any knowledge of the commitments which had been previously made by' the grievor, of which more will be said below. (~1 The grievor did not object to the aforementioned change in her daily routine. However, she soon realized that it had the potential to&interfere with a series of appointments which she had made prior to the change going into effect on November 13, 1986. Unfortunately, the grievor's son had been born with a heart condition that required regular scrutiny. For this purpose, she had scheduled a number of appointments with her doctor for Tuesdays at 5:00 p.m. This timing did not pose a problem in the period she was using her own car. However, after she commenced driving with Mr. Speedie, there was no guarantee that she could collect her son from the day care centre in sufficient time to keep the medical commitment. This difficulty was subsequently communicated to the Employer, as a result of which, the grievor was permitted to travel "within her eight hours" on Tuesdays on the understanding that she would not be paid for mileage. Ms. Vernon subsequently used her automobile pursuant to this understanding on November. 25th, 27thr and * December 2nd and 9th, 1986. A mileage claim of $156.20 was submitted in respect of these four (4) occasions. (vi) When the grievor resumed her employment at the Kirby site, she was entitled, according to Ministry policy, to be paid "reasonable mileage for the purpose of getting lunch." On the first seven (7) days, she travelled a total of one hundred and twenty-four (124) kilometres for purposes of getting to a restaurant in the area with which she was familiar. While she was not initially informed of this policy, nor of any limitations thereon, the grievor was aware that other employees at the Kirby -!L- ..--2 -~~-=:GC-rn.d -ncCn~n+~~annrnyim;r~t.hree (3) _I -3- kilometres away for coffee and lunch breaks. These employees would travel to the restaurant in their own cars or in Ministry vehicles. It was expected that if circumstances were such as to permit travelling together, that the employees should do so for purposes of eliminating duplicate claims. The cla.im initially submitted by the grievor in the amount of $34..10 was denied by the Employer on the ground that it was unreasonable to travel the kilometres shown when there were adequate eating facilities much closer to the site. It was further suggested that the grievor should have travelled to the restaurant in another employee's car. At the hearing, the Employer indicated a willingness to recognize a claim for forty two (42) kilometres, there being no doubt that she indeed used her automobile on the days in question. It was the Employer's denial of the two (2) mileage claims described abo~ve that led to the filing of the instant grievance. It was the position of the Union, in brief, that the car pool arrangement was unreasonable in that the actual work days of the grievor and Mr. Speedie differed substantially. While their shifts were notionally both 8:00 a.m. to 5:00 p.m., the grievor had previously been permitted to travel "within" her shift and thereby leave the work site at 2:40 p.m. In that the change occasioned did.not serve to effect a major savings, and was unrelated to the requirements or exigencies of the grievor's job, it was argued that the car pooling was unreasonable in the circumstances. While the grievor was prepared to tolerate this unreasonableness for four (4) of five (5) days of the week, she was not so inclined in respect of days for which she had made ,prior commitments. The Union therefore submitted that she was entitled to be paid mileage for use of her own vehicle on the four (4) occasions noted. Such use was described as being one that could properly fall within Article 22 of the Collective Agreement. With respect to the second mileage claim, it was argued that it was not unreasonable for the grievor to travel to a familiar restaurant. In the alternative, counsel submitted that she was entitled to be compensated for at least forty-two -4- (42) kilometres of travel, this representing seven (7) days at six (6) kilometres per day. The response of the Employer, in brief, was that the issue raised did not relate to the reasonableness of the car pool arrangement. Rather, it related exclusively to a claim for mileage on four (4) distinct occasions. The need for the use of her car on these occasions arose from the desire to attend to her personal business in contrast to that of the Employer. Reference was made to the concession of the grievor to the effect that her automobile was not required on site when she drove with Mr. Speedie. The employer's position in respect of the other mileage claim has been previously stated. The relevant provisions of the Collective Agreement are as follows: ARTICLE 22 - KILOMETRIC RATES 22.1 If an employee is required to use his own automobile on the hdloyer's business, the following rates shall be paid effective April 1, 1985; ARTICLE 22 - TIME CREDITS WHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travelling outside of working hours when authorised b-the Ministry. (emphasis ours) Central Region Construction Memorandum -,CRC 1186-16 relating to the lunch break states in part: "BREAK FOR NOON MEAL OR LUNCH BREAK During the lunch break the employee will be away from actual work for the approved duration of the lunch break only. Travelling time for the purpose of getting lunch is not considered as work and any travelling for the purpose of getting lunch will be during the employee's lunch break. However, reasonable mileage for the purpose of getting lunch will be paid to those employees entitled to reimbursement for meal costs.". (Exhibit #5) -5- It is clear to this Board that the grievor could be considered as having used her automobile in respect of the Employer's business in the period she drove to the job site. As indicated above, this occurred prior to November 13, 1986 and subsequent to early January, 1987. There is no dispute that she was paid mileage during such periods. This benefit was provided as a consequence of the grievor having to use her own automobile to travel to work. It is apparent from the evidence presented that the vehicle was not needed for the actual performance of her duties. With the arrival of Mr. Speedie at the work place, the Employer elected to implement the carpool ar~rangement described earlier in this award. Despite the able argument of counsel for the Union, we are not prepared to find that the initiative was unreasonable in the circumstances. We note, in this regard, that both employees had the same headquarters and job site, and that it was not inconvenient for them to travel together. We cannot J. find fault with the Rmployer's wish to avoid multiple payment of mileage claims. ' Further, both employees in our judgment had the same formal hours of work, these being 8:O0.a.m. to 5:00 p.m., albeit, that the grievor had previously been permitted to travel on shift and thereby leave the work site',at 2:40 p.m. The . practice in this initial period of employment at Kirby did not have the effect of changing the formal hours of work. Rather, allowed the grievor to offset driving time from the hours which would otherwise be worked. Additionally, we consider that the Employer was at liberty to terminate the arrangement, and to insist that the grievor actually work the eight (8) hours until 5:00 p.m., if it considered such to its advantage. This was a matter for the Employer to_resolve through,a comparative cost i , -6- analysis of the mileage previously paid vis a vis the travel time that would be payable were the grievor required to wait for Mr. Speedie and thereby travel offshift. While the,daily saving of $9.00 was not substantial, it was a savings nonetheless, and was one that would accumulate over-time if the carpool continued in effect. In summary, we have determined that the car pooling in this case reflected a decision reasonably taken. We would not have come to this same conclusion had the arrangement, for example,~ required the grievor to stay on site until 8:00 p.m. so as to allow Mr. Speedie to complete a twelve (12) hour shift. Our thinking, in this instance, is premised on the fact there was a similarity of circumstances between the two (2) employees in question. Lastly, we are of the view that this grievance was motivated by a complaint regarding the non-payment of specific. mileage claims and not by a more general concern as to the propriety of.a carpool decision. i. It follows from the conclusion stated above that the grievor was not required to use her automobile for the Employer's business during the period in which she drove with Mr. Speedie. 1 y ':: j the latter who would then be entitled to claim the ~I 8: Iriate mileage on that basis. . . The Board has no doubt that when she did elect to use her'automobile, she was doing so for reasons which were personal in nature. On three (3) of the days claimed, the grievor took her son to a scheduled medical appointment at 5:00 p.m. On the remaining day, Thursday, November 27, 1986, the grievor simply wished to arrive home at an early hour so that she could leave promptly for Toronto in preparation for an appointment at Sick Children's Hospital scheduled for the next day. We do not find her need to drive on -7- these days as being related to the business of the Employer in the manner contemplated by Article 22 of the Collective Agreement. We have considered the grievor's evidence to the effect that the Employer had previously paid mileage when automobile's had been used by persons who were themselves in a car pool. Our opinion is that insufficient evidence was adduced to establish the existence of this practice. For all of these reasons, we cannot sustain the grievor's claim to mileage for these days in the amount of $156.20. With 'respect to the remaining issue relating to mileage, we consider that the original claim was excessive. It is clear from a reading of.the Memorandum that the Employer may assess the reasonableness of the mileage. Given the existence of much closer restaurants, and the fact that other Ministry personnel. regularly used same for their breaks, we are not inclined to interfere with the Employer's judgment that the mileage claimed by the grievor was unreasonable. We find that the Employer, however, has not established that travelled with other employees or Ministry vehicle. It is our opini the grievor could have that she could have used a on therefore that she is entitled to claim some compensation. From the evidence presented, we are prepared to use the forty-two (42) kilometre figure cited by both counsel in argument. In view of the then current rate of 21.5 cents per kilometre, compensation is calculated at $11.55. For all of these reasons, the grievance is allowed in part. Dated at Toronto Ontario this 17th day of -M?rchr.. 1988. M.V. Watters - Vice Chairman : H. O'Regan, Member -. M.F. O'Toole, Member , .