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HomeMy WebLinkAbout1986-1874.Mahnke.88-07-20GRIEVANCE SETTLEMENT BOARD Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD OPSEU (W. Mahnke) and The Crown in Right of Ontario (Ministry of Correctional Services) Before: T.H. Wilson Vice-Chairman G. Nabi Member D. Wallace Member For thk Grievor: H. Sharpe COUllSt?l Gowling and Henderson Barristers and Solicitors For the Employer: J.F. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services Hearing: January 21, 1988 Grievor Employer DECISION The grievor is a correctional officer at Maplehurst Correctional Centre in Milton. He is a member there of the Institution Crisis Intervention Team (ICIT). That is a volunteer group of correctional officers who receive specialized training to deal with any confrontational situations should they occur. He also normally performs the .regular duties of a correctional officer. As part of his ICIT specialised training, the grievor attended a two week training course at the police college at Aylmer, Ontario between Monday, December 8, 1986 and Friday, December 19, 1986. The grievor was paid his travel expenses to go to Aylmer on December 7 and to return home on Friday, December 19. On the weekend occurring during the two week course, the grievor could have remained at the police college where he would have received meals or could have received some meal vouchers redeemable at certain fast food restaurants in Aylmer. He chose to drive home to Milton and he now claims he was entitled either to travelling expenses for that weekend or overtime. The grievor decided to go home for a number of reasons. He has two small children who live with their mother from whom he is separated. On the weekend in question, he exercised his visitation rights, picked up the children in Guelph where they lived and brought them to his home in Milton for the weekend. On the Sunday, he returned the children to their mother's home in Guelph and returned to Aylmer for the final week of instruction. - 2 - Furthermore, as he testified, he felt that the accommodation and food at Aylmer as provided in the program, was substandard in the sense that it was ins~titutional food and not consistent with his personal health conscious regime. The off-campus restaurants were similarly unacceptable. Before the grievor attended the course, he was given a memorandum written by Nigel March, the coordinator of ICIT and attached to the memorandum was a manual entitled "Joining Instructions for Candidates, Institutional Staff Training Branch." This document had been prepared by the Ministry of the Attorney General for police candidates. In Appendix "F" at p. 5 it stated as follows: RESIDENCE ON PREMISES REQUIRED All students will be required to reside on the College premises during courses. Absence from the College overnight, except on weekends, is forbidden unless permission has been obtained from the Trainer. Mid-Course Weekend Accommodation and meals are provided, however, (a) students may live out and travel at their own expense; and (b) must return by 2330 hours on Sunday. The Ministry of Correctional Services has never paid mileage for travelling to and from home during mid-course weekends. For the purposes of determining the grievance, it is - 3 - necessary to set out relevant provisions of the Collective Agreement. ARTICLE 22 -'KILOMETRIC RATES 22.1 If an employee is required to use his own automobile on the Employer's business the following rates shall be paid effective April 1, 1985. [rates omitted1 22.2 [omitted] ARTICLE 23 - TIME CREDITS WHILE TRAVELLING 23.1 ' Employees shall be credited with all time spent in travelling outside of working hours when authorised by the mini- stry. 23.2 When travel is by public carrier, time will be credited from one (1) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the destination. 23.3 when travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hour of departure until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or place of employment. The union contended that it is not reasonable for the Ministry to require the grievor to remain at Aylmer on a weekend which is otherwise free time. The Ministry benefits from the fact that correctional offices volunteer for the ICIT teams (no extra remuneration). Arguing that ICIT team members are general- ly older family men than are the police candidates for whom the - 4 - rules were designed, union counsel submitted that it is un- reasonable for the Ministry to expect such volunteers to stay in Aylmer on weekends when there is no instruction. It is important to note here th~at they are in fact free to leave on weekends but are not currently compensated for any travelling expenses so incurred. The union analogised the situation to that of sending an employee to a job site: he should be paid for going home on weekends. Counsel for the union stated that the Ministry of Transportation and Communications had cases like that. However, no details of any type were offered by the union. The-Ministry on the other hand submitted that there was a. jurisdictional issue in that the Ministry has .the right under s. 188~) of the Crown Employees Collective Bargaining Actfi.S.0. 1988, Chap. 108, to determine training and that such matters are not the subject of collective bargaining and further that there was nothing in the Collective Agreement from which the grievor could claim his travelling expenses. So far as jurisdiction is concerned, no argument was made by the union that any thing relating to the conduct or nature of the training itself was involved. The grievor is solely claiming certain travelling expenses. In Articles 22 and 23 the parties have agreed upon some travelling expenses and as so negotiated between the parties it is clearly part of the wage bargain, as valid items of negotiation. That in my view disposes of the first jurisdiction- al argument. So far as the question of whether in fact there is ,ievor under a travelling al lowance or expenses avai lable to the gr - 5 - these circumstances is strictly a contract interpretation question. It could become a jurisdictional issue, I suppose, if this Board in the end gave an interpretation which the Collective Agreement potentially could not reasonably bear. (See: Ontario Public Service Employees Union v. Forer (19851, 52 O.R. (2d) 705 and City of Ottawa and Ottawa Firefighters (19871, 58 O.R. (2d) 685). But I do not find the question posed by the grievance itself as raising a jurisdictional question - at least in the sense of posing any preliminary jurisdictional issue. It simply asks the Board 'so to interpret the-Collective Agreement as to allcw the grievance. Turning then to the language of the Collective Agree- ment, it is clear that to qualify for travelling expenses the grievor must bring himself within the meaning of Article 22.1. No decisions interpreting Article 22.1 were cited to the Board. However an important decision on Article 23 was presented to the Board. The case in point is O.P.S.E.U. (K. Dymond) and Ministry of Correctional Service's (GSB File No. 3771821, a decision written by Vice-Chairman R.J. Roberts. The time credits claimed in that grievance were for the period when the grievor, a correctional officer, travelled from his home to a hospital before the beginning of his shift, relieving a colleague who was guarding an inmate-patient, remaining with the inmate patient for the grievor's entire shift, and when relieved, travelling from the hospital to his home. The grievor normally worked at the Don Jail. The employer agreed in that case that when the grievor was - 6 - assigned to that duty he was required to travel "outside of working hours" to a "destination" which was other than his "place of employment" within the meaning of ss. 23.1 and 23.3. The issue was whether the grievor was "authorized" by the Ministry. The Board agreed with the Ministry that for "authorization" to have occurred within the meaning of s. 23.1 and 23.3 the employer must have specifically authorized .the travel in question (page 6). "Travel outside of working hours cannot be left to the option of the employees". Next the Board ruled that to be compensable under Article 23, the travel which is authorized must be on the employer's business. In so deciding, the Board analyzed the relationship of Articles 22 and 23 as follows at pages 7-8: We also agree that to be compensable under Article 23, the travel which is authorized must be on the Employer's busi- ness. Looking at the contract as a whole, it would seem that Article 22 and 23 of the collective agreement are intended to provide a comprehensive scheme for compensation of employees who must travel on the Employer's business in their own automobile and/or on their own time. Article 22 deals with the rate at which employees will be compensated for mileage accumulated while engaged in the Employer's business. Article 23 deals with the separate issue of how employees shall be compensated for time spent travelling outside of working hours. When we read Article 23 in the context of Article 22, it seems reason- able to conclude that to be compensable under Article 23 this travel must be on the Employer's business. This conclusion appears to be consistent with nrior awards. See e.g., Marcotte and The&Ministry of Correc- tional Services, G.S.B. 54/78; Tomasini and The Ministry of Transportation and Communica- tions, G.S.B. 71178. . . . ,!. - 7 - That Board then went on to hold that from the context in which s. 23.1 appears in Article 23 the employer must also have authorized the mode of travel used by the employee, i.e. whether by automobile or public carrier. Because of the dif- ference in result depending on which was used, the Board con- cluded that the parties did not intend to leave to the employee the option of determining which mode of travel to select. On the facts of the case, the Board concluded that the grievor met those criteria. Specific authorization to travel outside of working hours existed because .(l) the grievor was assigned to hospital duty by his Shift Supervisor; and (2) the duty as assigned necessitated travel outside of working hours. The Board stated that specific authorization exists if (1) travel is required to carry out an assignment from supervision and (2) travel outside of working hours is not left to the option of the employee. The facts also supported the conclusion that travel by automobile was specifically authorized by the employer. When the grievor was assigned to hospital duty the employer was aware that his usual mode of transportation in travelling to and from hospital duty was his personal automobile. Finally, there is no doubt that the grievor's travel was on the employer's business because in travelling to and from the hospital the grievor was travell.ing to a destination other than his place of employment and was not responsibility free; the grievor was required to be in uniform while travelling to and from the hospital and therefore was so to speak on duty. - 8 - 'In Christopher Pool and the Ministry of Correctional Services (GSB File 596/83) (Decision 15 August 1984, R.J. Roberts, Vice-Chairman), the grievor who was a Correctional Officer was required to attend a five day course at the Aylmer Police College. Accommodation was provided at the Police College and it was expected that the grievor would avail himself of this accommodation - at least to the extent that the Ministry would not be responsible to pay him mileage or travel time if he decided to commute. After 4:30 each a~fternoon during the week, the grievor was %n his own time save for observing the basic rules of the college residence as to noise, etc. The gri,evor claimed that because he was on travel status at the Police College in the sense of being absent from home on government business,, he was entitled under Article 23 to payment at regular hourly rate for all hours from 4:30 p.m. to 11:00 p.m. He relied on an interpretation of the words "travelling on government business" in section 17.22 in Re Boyd and Ministry of Correction- al Services, G.S.B. No. 105/83 (R.J. Roberts) but the Board distinguished its use in section 17.22 from its use in Article 23. Unlike section 17.22 travelling in Article 23 focuses upon the physical act of movement from home to destination. Professor Roberts concluded that the'parties did not contemplate "that the inconvenience to an employee of being away from home would warrant being paid his or her regular rate during his or her free time". In C.U.P.E., Local 767 and Ontario Housing Corporation, G.S.B. No. 159/77 (Adams), the Board characterised this kind of - 9 - inconvenience as being "only incidental to work. . .". In conclusion, the Roberts panel concluded that Article 23 solely contemplates payment of time credits for the period of time during which employees are engaged in the physical act of movement from one place to another on government business. Because the grievor did not claim payment for any time spent in physically moving from his home to his destination or vis-a-versa it was not compensable under Article 23. Articles 22 and 23 clearly are companion provisions and the two provisions do lend mutual understanding to each other. For Articles 23.2 and 23.3, we have seen that travel by automo- bile or public carrier must be "authorised by the employer" under Article 23.1. It is interesting to note that in Article 22 the language used in Article 22.1 is "required to use his own automobile on the Employer's business". Literally read, this provision does not cover the subject grievance. (1) The grievor was not required to use his automobile on the interim weekend. He could have stayed in Aylmer since the employer had provided accommodation and food to stay over. It is no argument that the grievor was less than satisfied with the quality of the accom- modation and food. Just as with a meal allowance under Article 17, an employee can pay more out of his own pocket if he wants to eat better quality food. (2) He really was not on the employ- er's business on the weekend. He was on his own time. The fact that he was not in his home municipality is not covered by the Article. In fact strictly speaking to carry the grievor's argu- - 10 - ment to its logical conclusion, if he were correct he could have driven home every night and back in the morning and claimed compensation for all those travelling expenses but for the fact that the written instructions indicate that he was required to remain in residence during the week nights - a provision not related tom costs of travelling but pre,sumably to either the nature of the training or the police discipline contemplated. If we posit a situation where those considerations did not exist and the program had not required week night residence, the grievor would have possibly claimed travelling costs for every week day evening and morning since his home was in fact within easy driving distance of the Police College. Furthermore we note that in such a program an employee might be brought in from northern Ontario, beyond the range of driving within the time frame. He therefore would not fall within Article 22.1. No doubt the parties bargained in the context that an employee's public carrier expenses to and from the college at the beginning and end of the course are paid by the employer (no doubt according to the employer's own tariff) but there is no claim possible under the Collective Agreement for air fare or trains for the interim weekend. The employer simply would not pay his expenses to go home on the interim weekend. Py going home on the weekend the grievor was on his own personal business. He was on his own time. He did not have to go home for the employer's benefit as contrasted with his having to come to the college at the beginn- ing of the course and return at the end of the course for the - 11 - employer% business. Nor was he required to use his automobile on the weekend although he was not prohibited from going home. The second argument of the union was based on Article 13. But this is obviously a make weight argument. Literally it is unsustainable. No work was performed during the weekend in question and to quote the definitions in Article 13.2 there was no overtime which "means an authorised period of work calculated to the nearest half-hour. . .performed on a scheduled day(s) off". Accordingly, the grievance is dismissed. DATED AT TORONTO, Ontario this 20th day of July, 1988. Thomas H. Wilson, Vice-Chairman /fLJ.A L4-Y G. NABI, Member ,