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HomeMy WebLinkAbout1988-0768.Sinacori.89-07-24 ,,~ , ~ ONTARIO EMPI_OY~$ DE LA COURONNE .. :~ . CROWN EMPLOYEES DE L 'ON TARIO GRIEVANCE C,OMMISSIOEI DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8-SUITE 2100 TELEPHONE/TE~.6-PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU2100 (416) 598-0688 768/88 iN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Sinacori) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: B.B. Fisher Vice-Chairperson I. Thomson Member D. Montrose Member For the Grievor: G. Richards Senior Grievance Officer Ontario Public Service Employees Union For the Employer: G. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Hearings: January 5, 1989 DECISION · This case raises the issue of whether or not an employee is entitled to be paid for his travelling time under Article 23 and his kitometre charge under Article 22 for attending on a iob interview under Article 4. The agreed Statement of Facts is as follows: 1. The grievor is employed as a Correctional Officer II at Millbrook. 2. In May, 1988 the grievor applied for a job as a Probation and Parole Officer in the same Ministry. 3. The grievor was invited to attend an interview in Cobourg, which is about 44 kilometers from Millbrook. 4. The grievor attended at Cobourg for the interview on June 13, 1988, which was a time which the grievor was not scheduled to work at Mil[brook. 5. The grievor attended at the interview as scheduled. 6. The grievor claims for the time he spent travelling to and from the interview location in Cobourg from his house (but not the time spent at the interview) and for the kilometers driven. 7. Management at MilIbrook had no knowledge of the grievor's attendance at the Cobourg interview until after the claim was put in. 8. The person in Cobourg who invited the grievor to the interview had no formal authority over the grievor. 9. The Ministry's practice, although it claims it is not compelled to do so by the Collective Agreement, is to reimburse individuals in this situation for the kilometre charge but not for time spent travelling. In accordance with that practice, the grievor was paid the kilometre charge only. -2- In order for the Union to be successful they must prove four things. 1. Was the grievor "on the employer's business" when he went on the interview? (Art/de 22.1) 2. Was the grievor *'required" to use his own automobile? (Article 22.1) 3. Was he "authorized" by the employer to travel outside of working hours? (Article 23) 4. Is Article 4.4 an all inclusive scheme of compensation, thereby excluding the operation of Articles 22 and 23? It was dearly not part of the grievor's idb to attend on this interview, in fact, the purpose of the interview was to obtain a different job. in the cases put forward to the Board by the Union, the activity in question was clearly related to the grievor's performance of his job duties. For example, in Dyrnond, (Vice Chairperson Roberts 377/82) travelling to a hospital to guard inmates was held to be travel on the employer's business. At page 10, the Vice Chairperson states: Finally, there is no doubt that the ~evor's travel was on the employer's business. It was conce[:led that in travelling to and from a hospital the grievor was travelling to a destination other than his place of employment. It seemed cIear frqm the evidence that this travel was not re. sponsibilityrfrqe. The -gn'evor was require, d b.y the eml~loyer to be iri uniform during the course of this travet. He was forbic[den for security reasons ~om changing tnto and out of his uniform at.the hospztal to wtuch he was assigned. The weaking 9f the employer's um]'orm entailed certain responsibilities toward the employer as to decorum, etc., that the gdevor couM not (gnore. It also involved taking certain risks that might result.from 5eing identified in the community as a Correct~onaI Officer. It, seems to us that in the light of these consMerations, the travel .of tt~e, grievor properly is characterized as being on the employer s business, at least for the purvoses of Art-icle 23. See eenerally, Mareotte and Ministry of 12orrectional Services, G.S.B. Nb. 54,/78 Buchanan and Ministry of Correctional Services, G.S.B. 34/78. -3- The Union argues that the definition of "on the employer's business" should be read broadly so that as long as the purpose of the activity was part of the employer's business, Article 22 applies. The Union argues that the job posting procedure under Article 4 is part of the Employer's business as Section 18(i)(a) of CECBA makes "employment" and "appointment" exclusive management functions. The Union relies on Vice Chairperson's Barrett's decision in Berlinghoff and Eaton (1878/87) in which she says, when commenting on the applicability of the grievance procedure to Article 22, "We have no doubt that it is part of the employer's business to process grievances." and "While grievance handling is part of the employer's business, it is by no means the main business of the employer". To apply a definition of "employer's business" to any activity carried on by the employer would be to expand the purpose and intention of Article 22. For example, say a Ministry decided to hold a Christmas party after hours at a site 25 miles away from the place of work. Attendance, of course, would be completely voluntary. If someone attended this party, would the employer be required under Article 22 to pay for their car travel to and from the party site? It could easily be argued that part of the "employer's business" is to insure good morale of its staff and that a Christmas party was essential to morale boosting. It is difficult to imagine that the parties intended this Article to pay for items like that. It seems more consistent with the overall application of this Collective Agreement that "employer's business" should be interpreted to mean business which the employer has the right to compel the employee to perform, not activities which are voluntary to the employees. The easy way to test the issue of mandatory v. voluntary is -4- to ask, "Could the employee be disciplined for refusing to travel to the site specified?" If no, then the activity, and thus the travel, is voluntary and therefore, not on the employer's business. Clearly the grievor could not be disciplined for failing to go on the interview thus his actions were voluntary, thus getting to the interview was not being "on the employer's business". Applying this test to the Berlinghoff situation would, however, lead to the conclusion that grievance handling is not part of "the employer's business" as one cannot be disciplined for failing to show'up at the grievance meeting. At first blush, this woul d seem to contradict the decision in Berlinghoffwhere the Board held that grievance handling was "part of the employer's business but by no means the main business of the employer". However, it should be noted that the grievance in Berlinghoff was dismissed and therefore the comments of the Board on this particular issue were obiter dicta, or in other words, not necessary to the determination of the issue. 2. Was the employee required to use his own automobile? This provision is only applicable to Article 22. There was no ,evidence that anyone in management required the grievor to use his own car, in fact, no mention was made by anyone about how the grievor should get from his house to the interview site. Dymond is authority for the proposition that in order to fall within this section there must be evidence of the employer specifically authorizing the employee to use his own car, although this authorization may be inferred from the facts. In Dymond the Board found that such authorization was given because: a) in the past the employee had used his own car for the same function and the employer knew this; -5- b) the employer regularly paid the grievor's parking fees at the various hospitals to which the grievor was assigned. Irt this case, the grievor's direct supervisor did not even know of the interview prior to it occurring, therefore, he could not have authorized such a trip by private automobile, The author of the letter inviting the grievor to the interview makes no mention of authorizing the mode of transportation. Therefore, the Union has failed to establish evidence of authorization for the grievor to use his own automobile and on that ground alone the grievance, as it relates to Article 22, fails. 3. Was he authorized by the employer to travel outside working hours? Again the Union must prove that specific authority to travel outside of working hours was given by the employer. (Dymond, page 9) This authority may be express or implicit in the situation. For example, in Dymond, the Board found that specific authorization was given in that: a) the grievor was to be at the location his entire shift, thus providing time for travel to and from the site during working hours; b) the work site was not his regular place of employment thus travel outside working hours was necessary to perform the job. In this case, the grievor's own supervisor did not even know of the interview so he could not have authorized it and Mr. Fox, the author of the interview letter, did not even know whether or not the grievor was scheduled to work that day, so he could not have authorized this travel outside of working hours. Thus, on this ground alone, the grievance, insofar as it relates to Article 23, fails. -6- 4. Is Article 4.4 an all-inclusive scheme of compensation, thereby excluding the operation of Articles 22 and 23? It is now clear from the case law that Article 27 is a complete code of compensation for absences due to involvement in the grievance and arbitration procedure. The following cases are relevant: Berlinghoff Articles 17 (Meal Allowance) and 22 (kilometre charge) are not applicable to the grievance procedure. McKie (Vice Chairperson Palmer, 80/80) Grievor not entitled to be paid for attending grievance meeting on his scheduled day off. Roberts (Vice Chairperson Verity 2545/87) Grievor only entitled to actual time off in order to travel to and attend the Grievance Settlement Board hearing and not all other working hours within the same 24 hour period. The language of Article 4.4 neither specially excludes nor inctudes compensation under Articles 22, 23 and for that matter, Article 17._ If the Union is correct, employees would be in the somewhat unusual situation of being compensated for their travel time, kilometre expense and perhaps meal expense if their job interview was on a day off, but not be compensated for the actual time of the interview. The language used in Articles 4.4 and 27.6.2 is almost identical in that they both refer to "an employee shall be granted (or 'given') time off with no loss of pay and with no loss of credits". It is therefore useful to see what was said in Berlinghoff (at pages 7 and 8) about this issue in relation to Article 27.6.2. -7- We have no doubt that it is part of the employer's,business to process grievances. It is also part of an employee s business to file -grievances and to attend to the g~evance procedure on his own behalf. Effective grievance handling is in the best interests of both the employer and employee. An appropriqte grievanc, e procedure is tt]e main underpinning of any ColIdctif~e Agreement oecause it is to #ze mutual b_enefi._t of ?he parties to facilitate the:. proper handling of g~i_ 'evances. Traditionally both have shared, at teast to some extent, the cost of handling grievances so that neither is inclined to abuse the process. Gene?ally ~pealdng grievance meetings are held during regular business hours because thai is when all of the participants are readily available. The management team is paid to attend these meetings because that is part of their regular duties. Similarly, grievors are not docked pay to attend these meetings in regular working ho. urs because the loss of pay could ?ell 5e prohibitive to some employ_ecs with legitimate gnevances. It is the presumed legitimacy of the sr(evance procedure which brings into. being ctauses sucnas Article 2Z 6.2 to prevent salary 16ss to me participants in a grievance meettng. However, we do not find that Article 27.6.2 is an all-encompassing clause recluit~ng that the employee is to bear no expense whatsoever to partiapate in the grievance procedure. We find that Article 27 v~as intended by the parties to cover the ent,re procedure for the handling or,grievances and the financing of_ same and we should not look outsid-e that clause to Articles 17 and 22 to find additional recompense fgr employees e.ngaged in the grievance procedure. Article 2Z 6.2 is quite clear in specifying that employees shall suffe, r no loss .of pay or credits to attend grieuance meetings but, framed negativel~ as the clause is, we can find no intention or wording that would impose a positive onus on the employer to p~, expenses as well While grievance handling is part of the employers business, it is .by no re. cans the main busin, ess of the empl3yer. Grievance handIi~.g is ti~e joint business of t~ze employer and the employee and ih our view the cost-shah'ng involved in that has been fully and completely set out in Article 27. The same can be said about the posting procedure and therefore the same logic should apply so that Article 4.4 is in itself a complete code of compensation for employees seeking a new position and the financing of this endeavour should not be permitted outside the provisions of Article 4. -8- Therefore, the grievance is dismissed. Dated at Toronto, this 2~ dayof .1uly, 1989. sher,v~ce t.:nairperson 1:· Thomson, ]~ember D. Montrose~ Member