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HomeMy WebLinkAboutUnion 04-04-30 d//o 0003 IN ~ MATTER OF AH ARBITRATION BETWEEN: ..... ' ' '"" FANSHAwE COLLEGE .... " '~"" ' '": ' (THE COLLEGE) ONTARIO PUBLIC SEKNtICE EMPLOYEES UNION (arm UmON) AND IN TI-IE MATTER OF A UNION POLICY GRI'EVANCE (ACADEMIC) BOARD OF ARBITRATION: .... ..... . -.: - .. J. MoMANUS, UNION NOMINEE . ~ ' ' '; :-'.' . . APPEARANCES FOR THE COLLEGE: ..... Margaret Szilassy, Counsel Scott Porter, V.P. Finance Michelle Perkins, H.R. APPEARANCES FOR THE UNION: - .. .. " Maureen Doyle, Counsel Tom Geldard, L.U.V.P. Gany Fordyce, Chief Steward A I-lEAKING IN THIS MATTER WAS ttELD AT LONDON ON JANUAKY 28, 2004. AWARD The grievance dated January 16, 2003 is a claim of a violation by the College of Article 25 of the collective agreement in effect between the parties as to the 2003. The Union requests that the policy be rescinded and that reimbursement for automobile expenses be paid in accordance with the collective agreement. The Policy Manual of the College referred to in the grievance sets out under the heading of Transportation, the following sections: "3.4 Reimbursement for travel from the employee's residence to a destination that is not the employee's normal workplace will be based on the distance from the employee's residence to the destination less the distance from the employee's residence to her/his normal workplace.,. : 3.5 Reimbursement for the use of'a personally owned ............ aut_o, mobile will be based on kilometric distances.at a. rate to ' be published from time to time by the Management Board .' ' .' · of Cabinet." Following the filing of this grievance, the parties met at Step Two when the College acknowledged that the above Policy had been adjusted and that effective May 7, 2003, the above sections'of the Policy were deleted and replaced With the fOllowing: .. "3.4 Where an employee is authorized to travel from his/her residence to a destination that is not the employee's normal workplace, reimbursement for kilometrage expenses will be for the actual distance traveled from the employee's residence. 3.5 Where an employee is authorized to travel from the employee's normal workplace to another destination, reimbursement for kilometrage expenses will be for the The Union alleges that the terms of the Policy as amended do not conform with Article 25 of the collective agreement in that the Policy provides for travel expenses to be paid to employees in not the same manner. Thus, the Union's concern and its grievance continued and was submitted to arbitration at the heating as above noted. The Board has considered the submissions of the parties with regard to the issue raised in the grievance in the preparation and release of its award set out hereunder. It is the College's. position that initially its Travd Policy was amended in October 2002 and became effective in January 1, 2003. Ho.w_ eyer, after the filing 0ft.h!.'.~ grievance and having considered two prior awards i.e. Re Seneca College and OPSEU (Shime, August 12, 1986); and Re Sheridan College and OPSEU (KD. Howe; April 20, 1996) the latter of which dealt with the same contract language although in the Support Staff bargaining unit, the College decided to revise its policy for travel set out above and disclosed t° the Union at the second step of this grievance procedure. This amendment to the Policy is in its submission, consistent with Article 25 of the collective agreement.' The Union proposed to call as its witness, Professor G-eldard who is in the Development Services Worker Program and is involved in situations where automobile Policy of the College. Ms. Szilassy objected to the admission by the Board of this proposed testimony as it would not be relevant evidence to the grievance. A "will-say" · · statement .of the Professor was prepared-for consideration by.~he Board.of the objection of. · . .....:' . '.........'.'.' ... "'..... ' .'..?' -:~". 'i "'" .:.~ · ..: ..... . · - the College. Its decisiOn Was'r~serVed ~itfiom"the'oral testimonY'being given'at the "':. heating. The Board has reviewed and considered the statement of facts set out by Professor Geldard and conclude as argued for the College, such testimony would not assist the Board in its deterrrfination of the issue raised in the grievance particularly that he has not been required to travel by his car since the amended policy became effective. Whatever inconsistencies in reimbursements to him occurred, they were the result of the application of the prior policy for travel Which as.noted, the College amended to be consistent with the Howe award.. Estoppel as an issue was not raised in this matter. We therefore find on the ba§is'that the proposed testimony does not have relevance to the issue that this · evidence sought to be introduced by the Union does not have probative value. The Board therefore allows the objection of the College to the admission and use by'the Board of the proposed testimony of Professor Geldard. , The submission for the Union is that the College's amended policY for travel expenses does not conform to the collective agreement requirements set out in Article 25.01 in which reference is made to "accustomed work location". With reference to the Sheridan College award, it was held that there can be only one work location of an employee and therefore to maintain an even application to all employees of kilometrage, the College should calculate the payment from their accustomed work location. There has been no history of uniform payments by the College and it is submitted that there should :', .... '-'.'--' be an assurance-of equal.treatment for all employees under Article 25~0.1A on assignments ...... .... "tO Work OUtside 0fan'en~pioy~e;su~ual'~ork''i'~e~ti0n~ ...... ....-. '..'... 'i.;.:. .... ':....- . The submission for the College relies on the conclusions in both of the above- noted awards to maintain that employees are not entitled to kilometrage expense from the distance they travel from their homes to their accustomed work location and as there is only one work location for the employee, Article 25 by referring to reimbursement of kilometrage expenses requires payment for the actual kilometrage expense incurred by the employee. That is consistent with Section 3.4 of the Policy for reimbursement for the actual distance travelled by the employee from the residence to a work location which is ' other than the employee's accustomed work location when the .emPloyee is authorized to engage in such travel. I/the parties intended to pay.kilometrage only from the .. . .. .~ accustomed work location of an employee regardless of the point of departure or the actual distance driven by the employee, that language could have been included in Article 25.01 and was not so that if at all, this should be the subject of negotiations between the ' parties and not revisited by the Union's grievance at arbitration during the term. of this' ~ collective agreement. In the Sheridan College award, the kilometrage allowance clause differs from the above terms only with the reference to "his/her normal work location" while Article 25 refers to "the employee's accustomed work location". While that case dealt with the Support Staff bargaining unit, the Board's interpretation and application of essentially the same contractual term in a collective agreement in the Community College System while : not binding on this Board is instructive and relevant to the issue, raised in this grievance. It . .... "· was'-heid by the BOard that there i'~ a single' camPus lOcation t3 which an employee is -' ' · - assigned. That Board also held that: "The employee is permitted by the College to use his/her car to drive directly from home to a location other than his/her permanent work location in order to carry out approved College business and to return home directly from that other location without going to his/her permanent work location. Having fulfilled each of the conditions specified in Article 8.3, the employee is entitled to be paid the kilometrage for which that Article provides (i.e., the kilometrage actual driven) and the Employer cannot legitimately derogate from the employee's rights under that provision by requiring the employee to deduct the aforementioned deemed -kilometrage." The Board found that the College was not permitted to require employees to deduct from their claim, the distance driven between his or her home to their normal work location and therefore concluded that when an employee is authorized to travel by his or her car for College purposes, payment is made from thek home to the work destination without deduction and that calculation commences from their home and return. The: Seneca College award supports the Union's submission that there is only one accustomed work lOcation for an employee. The above-cited award is a clear indication to the parties of the appropriate administration of Article 25.01A even though the Howe Board dealt with the Support .. '.'i. '. '. Staff'cOllective'agreement, 'ag'the!anguage c0ncerning'the'issue in'this grievance' has the "..-i". ':" " ' . . .....-........ . ',.' . . ....... ... '..'~ . :.' . ~. :. : . ~' '. -~ . .. .... same intent for its application. We find there is no basis to distinguish and not follow the conclusions of that Board particularly in that it was found an employee would be reimbursed for kilometrage from the point of departure from home on approved College business without deduction of the mileage from that point to the employee's normal work location. Having regard to that interpretation, the College amended its policy l-H-03 and applied as of May 8, 2003, the new Section 3.4 set out above which reflects that Board's conclusions and which was put in place after that decision came to the attention of the College. Further, in interpreting the precise language of Article 25.01 A w~ch is: " An employee authorized to use the employee's car on approved College business including travelling to assigned duties away from the employee's accustomed work location shall be reimbursed kilometrage expenses in accordance with the following: Kilometres Southern Northern -. -Driven Ontario Ontario 0-4,000 33.75 cents/kin 34.25 cents/km 4,000-10,700 29.25 cents/kin 29.75 cents/kin 10,701-24,000 24.75 cents/kin 25.25 cents/kin 24,000 km and over 20.25 cents/lan 21.25 cents/kin" "accustomed work location" does not by that language restrict payment of automobile ...'.. expense§ from the'pbint'of, th~ emPlOYee's normal Work i~cation:t0 th~i~cati0n°fthe "'." :' ': other duties as assigned. In addition, the word "reimbursed" must be given meaning in the context of payment for personal automobile expenses to which this Article is addressed and which means payment for the actual cost involved in the expense of using a private automobile for the use of the College. That payment applies under this Clause when the employee is assigned duties "away from" the normal or accustomed work location of the employee so that it is not necessary and indeed improper for a calculation to be made of those eXpenses only from the accustomed or normal work location of an employee as that is specifically included and does not exclude travel expenses payable from the point of commencement Or the' home of the employee to such work location as assigned. That is the actual expense incurred by an employee who operates his or her vehicle for the "Col~ege with regard'~o the expenses Of the use of that automobile. · To limit the calculation ofkilometrage expenses from an accustomed work location would exclude actual travel expenses incurred by the employee who has been authorized to use his or her personal vehicle from home or point of depakmlre to his assigned work location which is other than his normal work area. That is a proper reimbursement of expenses which is the intent set out not only in the heading but in the body of the language of Article 25.01 A. Both the words "including" and "reimbursement" are to be given meaning in the context of the application of this Article and significantly direct the proper administration of automobile expenses. The uniformity of payment for kilometrage by the College is not the necessary result either as expressed in '." :.-.' the 'policy :0fthe'C011ege or contractual in~thelangflage of'Article'25.0'l'A; and. differenceg. :'! '., '...-..:". :'-"' . :.".. .... '. . . -: ~ .- -,"..~ -. · -.-.' - :.. ' ........ ~ .' · :~.- ........ .. : "-, '.... " "".~ :' .'. ': ~'~ - ' .~... '~ ' ' . .C . ..... ~' . . ? .' ... ' .'~' ." . in the result of these calculations on this basis may occur as a result of its application of this specific language of the agreement but which we find is not contrary to but is consistent with the parties' intent therein expressed. While the initial policy for travel expenses prepared by the College and which is the subject of the grievance was not consistent with the interpretation of this Board as set out above, k is clear to us that the mending statement of l-H-03 which defines "kilometric distance" as "distance between centres actually driven in a personally owned automob'lle on authorized College buS'meSs frOm the'0fficial Province'of Ontario map Plus .......... ' .......... explained local distance in kilometers" is the appr~opriate conclusion for the administration of Article 25.01. This conclusion is buttressed by the amendment to Sections.3.4 and 3.5 set out in that "Policy Manual" as amended, which allows for expenses to be paid to an employee for the "actual distance traveled from the employee's residence". We find thai! the College by amending ks initial travel expense policy has complied with the direction 'for the application of this Article in the Sheridan College aWard and is consistent with'and " not contrary to the language of Article 25.01 A of the collective agreement. l0 Having regard to the submissions of the parties and for the foregoing reasons, it is .~" :the Board's award that tM.grievance is dismissed. · .' ....-':. '.' . ..... "..' ...... : : . DATED AT OAKVILLE THIS 30x~ DAY OF APRIL, 2004. HOWARD D. BROWN, CHAn:[ R.J. GALLIVAN, COLLEGE NOMINEE J. McMANUS, UNION NOMINEE -- '::