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HomeMy WebLinkAbout1988-1403.Shaw.92-12-17 · 'Z_ ,~ 0 W~',~ EMPLOYEES DE GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~.~0 0UNDA$ STREET wEST, SUITE £100, TOF~ONTO, ONTARIO MSG IZ8 TELEPHOtIE TE~.E~C~.E '-::6; f~25-:~' 1403/88 F.~RR O~ ~II%RBI~R~IO~ Under CUPE 1750 (Shaw) Grievor The Crown in Right of Ontario (Workers' Compensation Board) Employer BEFOPm: B. Kirkwood Vice-Chairperson . I. Thomson Member. R. Scott Member FOR T~e M. Wright GR?WOR Counsel Sack, Coldblatt, Mitchell Barristers. & Solicitors FOR T~ D. Jarvis ~MP?~Y~R Counsel Winkler, Filion & Wakely Barristers & Solicitors RE~IN~ May 29, 1992 Pu~c 2 DECISION The union claimed that the grievor was denied mileage and parking expenses while he was working on a temporary assignment from December 5, 1988 to January 6, 1989, contrary to articles 24.01 (a) and 25.01'of the collective agreement. "The grievor is a Senior Field Auditor. He resides in Burlington and works in the Southwest region. His work requires extensive travelling, as he must visit companies at various locations to verify payroll information and claims. He also has worked at the employer's offices in Kitchener, Hamilton and Ste. Catharines. In the year that 'the grievor filed his grievance, he travelled approximately 16,000 kilo~etres to 18,000 kilometres by car. Although he is responsible for providing his transportation, he has been reimbursed for travel expenses in accordance with the employer's Policy and Procedure Manual. ~n 1983, a written explanation of the travel guidelines'was given by the grievor's supervisor, to all field auditors in e~gion,including~-~t~e _grievor. The effect of the memorandum, as it related to the was that the employer covered the grievor's travel ~~n_se~ from his home to wherever he was assigned to work. The relevant portions of the Policy and Procedure Manual on the "Expense Account Policy" statedl POLICY It is the policy of the Workers' Compensation Board to reimburse employees for expenses incurred in the performance of their assigned duties in accordance with the general provisions set out below .... Pa~¢ 3 TRAVEL AND TRANSPORTATION GENERAL All travelling expenses, within the budgetary limits are to be authorized by the employee,s immediate supervisor. This authorization is subject to further approval as may be required by the Executive Director concerned... M~THOD OF TRANSPORTATION The method of transportation used will be that which involved the least expense to the Board considering both the · ~dollar cost and the travelling time involved. BUSES. TAXIS OR LIMOSINES Buses will be used where convenient service is operated... PUBLIC TRANSPORTATION Where public transportation is used by an employee on board business, the expense will be reimbursed .... AUTOMOBILSTRAVEL An employee may, with supervisory approval, drive his or her own automobile on Board business .... DISTANCE TRAV~.r.t.~D BETWEEN EMPLOYEE'S ~ESIDENCE AND THE BOARD WORK BASE An employee using his or her own automobile, who is required to travel on board business, will not be allowed to claim for the distance travelled between the employee's residence and the Board work base unless approved by the employee's supervisor. The relevant portions of the 1983 memorandum to the field auditors statedt Effective October 1, 1983, the following travel allowance guidelines will apply. In addition, the current designated work area for each auditor has been specificaIly defined in writing, in the attached 'Notice of Designated Work Area'. Page 4 (A) Mileaqe i) When Auditor's residence is located within the designated work area, all mileage is to be calculated from home. ii) When the Auditor's residence is located outside of the designated work area - all mileage for work assigned outside the designated work area is to be calculated from the Auditor's residence; for work assigned within the designated work area, mileage is to be calculated from the points at which the boundary of the designated · ~work area is crossed (i.e. the point of entry closest to the Auditor' s residence. ). · · (C) Definitions (for expense guideline purposes) 1) Service Area - This is the area or territory usually being a group of adjacent counties, normally' serviced by an audit team. For example, the service are of the windsor audit team is the counties of Essex and Kent. 2) Designated Work Area - This is considered to be the area within the boundaries of the service area, within which the Auditor or the audit tea~ will conduct the majority of work assig~__m~nts. A designated work area is specified for each Auditor. 3) Work Locatio~ - the work location is the location of any work assignments, including work anywhere within the designated work area, the service area or any other location inside or outside the province of Ontario. Mr. La~ defined the grievor's particular designated work area and terms of pay~nt in Schedule I to the memorandum. He stated: fIf you reside in your designated work area, you w paid mileage from your home to all work locations. Should you reside outside your designated~rk area, you will be paid travel allowance in accordance with Sections A(ii) and B(ii) as stated in the a~ached ( Page 5 I.D.¢. dated August 25, 1983.[i.e. the general body of the memorandum]. On November 17, 1988, the Regional supervisor, Mr. 'Stan Stanois advised the grievor in a written memorandum that the grievor was assigned to work at the Hamilton Regional Office from December 5, 1988 to January 6, 1989. He was to work with two other field auditors from Hamilton, and twelve others from Toronto, ..to clear the backlog of work that had been created by the implementation of a new computer system. M~r. Young, advised the g~rievor that as he would be working regular office hours, inst~ad of~_~irregular hours, and was ~erforming normal office duties,~ and not his .normal field duties, he would not be paid travel expenses while working in the office. Travel expenses would be paid again, once the grievor resumed his ~ield duties. The grievor dis~ the employer's position and claimed that pursuant to the~1983 memorandum, he was entitled to be Paid his parking and kilometi~ge-'~ ~ex' penses from his home to the employer's office. The union relied on articles 24.04(a), 25.01 and the decision of CUPB(Zonni/Hardy) and The Crown in Right of Ontario (workers' Compensation Board) G.S.B. 812/89; 1472/89 (Kirkwood) to argue that the practice of paying travel expenses was incorporated into the collective agreement. Article 24.04(a) states~ 24.04 Meal Allowance ia) The current practice concerning meal and expense policy will be continued for the duration of this Agreement... Pa~.e 6 Article 24.05 states.- 24.05 Kilometra~e Rates (a) If an employee is required to use his own automobile on the Employer's business, the following kilometrage rates shall be paid:... In CUPE(Zonni/Hardy) (supra), the grievors were rehabili.t, ation counsellors and they required a car to perform their job. On the occasion in dispute, the grievors had to attend a training session at the Downsview Rehabilitation Centre. Due to the numbers of employees who were required to attend the session, the employer provided a 'bus to transport the employees from the closest subway station .to the Downsview Rehabilitation Centre and advised its employees that kilometrage expenses would not be paid. The grievors used their cars and submitted claims for their travel expenses, which claims were denied by the employer. The Board l.efound that article 24.04(a) was ambiguous, and that the "ex~pense ~licy" referred to in article 24.04, referred to the Poli~t_~nd Procedure Manual, which contained the conditions~_~or payment o~f xpenses for the employees. The Board found that under article '24.04(a), the parties agreed to follow the te~pf_.the_P l~cy and Procedure Manual on expenses during the term of the collective ~qreement. However, the Board denied the grievance, on the basis that the grievors had not met the criteria in article 25.05; they It ~were to their' cars as the provided not use employe~r transportation. n addxtion, the employer no longer provid.d . authorization fo~ the grievors to use their cars, as required by Page 7 Union's counsel argued that as the Board in the CUPE(Zonni/Hardy) (supra) decision had interpreted article 24.04(a) to incorporate the Policy and Procedure Manual into the collective agreement, similarly, the "current practice" with respect to the administration of expenses is incorporated into the collective agreement and cannot be changed by the employer during the agreement. Union's counsel argued that the practice at the time of the filing of the grievance, as evidenced by the collecti~% agreement, the Policy and Procedures Manual, (the Policy) and the Revenue Audit policy, (the 1983 memorandum), was to pay travel expenses, wherever incurred. There was no limitation that the work had to be carried out in the field. Union's counsel argued that the Board could not change its policy, and refuse to pay the grievor's car expenses. Union's counsel argued that the facts of the CUPE(Zonni/Hardy) case were different from the facts before us, In CUPR(Zonni/Hardy) the employer did provide alternative transportation, which the grievors refused. In this case, there was no convenient bus service available to the grievor and the car was the cheapest source of transportation for the grievor. Employer's counsel argued that the management's rights as set ~ut in section 18(1) of the Crown Employees' Collective aargatn~nV Ace, is sufficiently broad to include the right to define the expense policy. In absence of any restriction in the collective agreement, the employer can determine when there should be re/~burse~ent of expenses. Article 24.05 only determined the rate of reimbursement and did not define entitlement to reimbursement. ,, ( Page 8 Employer's counsel further argued that only the Policy and Procedure Manual is part of the collective agreement and not the practice. As the employer did not give its authorization, as required by the Policy and Procedure Manual, the grievor was not entitled to reimbursement. Employer's counsel argued on the basis of the'CUP~(Zonnl/Hardy) decision, an employee who is required to have his or her car on most days, is not always reimbursed for all car expenses. Furthermore, the employer can revoke its authorization under the Policy and change its practice. Furthermore, employer's counsel argued that there was no compelling evidence of.:a practice. At most, employees were reimbursed when they worked in the employer's offices, only if they were on short assignments, replacing employees who were absent for illness or holidays. Employer's counsel argued that the purpose of the expense account policy is to reimburse the employee for genuinely incurred expenses. It is not part of the salary provided to a field auditor and is not a windfall. Employer's counsel argued that the grievor did not have to incur any expense, as the grievor was not required to have his car for the duration of the assignment, was working at a fixed place and was told in advance that he 'would no~ be reimbursed. Management is given broad latitude to manage its o~ganization under section 18(1) of the Crown Collective Barg&lning Act. It stat~s~ (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, P~c ~ without, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions;... .. However, in articles 24.04(a) and 25.05 of the collective agreement, the employer agreed to limit its management rights, where those rights relate to the reimbursement of certain expenses. It agreed that the current practice concerning meals and expenses is to be continued for the duration of the collective ~agreement. It further agreed in article 25.05 to the kilometrage rate that was applicable when the employee was required to use a car. In CUP~(Zonn~/Hardy) (supra) the Board considered the interpretation' of articles 24.04(a) and 25.05. The Board held that the "expense'policy" referred to .in article 24.04(a) was not limited to one circumstance, but included a broad number of ~ircumstances as set out in the employer's Policy and ~rocedu~e ~Hanual. The Board found that as the parties agreed in arti~le- practxce' concerning meal and expense policy, .the~parties ~-'~ - hy the employer's Procedure and Policy Manual. This bound principle is also applicable to this case. However, although the Policy and Procedure Manual set out the broad ter~s that were applicable for reimbursement for travel expenses for members of the bargaining unit, i~_~n the 1983 Pa~e 7 memorandum, the employer applied the policy, clarified its terms \ and authorized expenses, a~s it related to field auditors and authorized the circumstance~ un~er which the expenses would be paid. ] It set out the general information that the field auditors ~ded to know, to determine when mileage was applicable, and the information required to calculate the mileage. As Mr. Young testified, the memorandum was consistently applied. He explained that from 1983 to i988, field auditors were reimbursed for their' travel expenses if they were carrying out employer business in the field or at the employer's offices. _. In Schedule 1.~to the '1983 memorandum, the. employer advised the griever how the Policy particularly related to him. The memorandum authorized the griever to use his car to go to any work location, and to be reimbursed for his travel expenses, even if he travelled from his home to an area within his designated work area, such as Hamilton. ~ We cannot accept Mr. Young.'s suggestion that the approval of travel expenses was at the manager's discretion, as the exercise of management's discretion was contrary to the employer's policy for field auditors, and there were no instances where a field auditor was not paid for travelling to a destination required' by the employer within the griever's region. A/though Mr. Young also distinguished payment for travel to the office in the earlier situations from the situation at hand by the shorter length of the assignments and the nature of the assignments, there was no distinction in either the Policy and procedure Manual or the memorandum between the "normal" field duties and "assigned" duties. Nor was'there any basis in either Page II the Policy and Procedure Manual nor the memorandum for determining payment by the length of time the assignment required. Kilometrage and parking expenses were always paid, whether or not the work was done in the field or in the office, and irrespective of the purpose of the work. This is consistent with the general reasons for reimbursing employees for their travel expenses. Reimbursement is not related to the nature of the tasks performed nor the length of time that it takes to perform them, but to reimburs~ the employee for the costs required to perform the employer's business. Employees are not expected to subsidize the employer for carrying, out its work. Although the employer has broad management rights in section 18(1) of the Crow~ Bmployees Collective Bargaining A=t, the employer must not exercise those rights arbitrarily. The employer had no rationale that was consistent with its own policy or inherent to the purpose of reimbursement to support a distinction between reimbursement for expenses~for field work and no reimbursement for work performed in the office. On the employer's premise, a field auditor could be reimbursed if the field auditor was perfozlaing field audit work in the sa~e building as the office, but not be reimbursed if the field auditor was doing the employer's work at the office. This distinction has no relevan6e to expense policies. Similarly the length of the assignment is irrelevant. ,~ The employer suggested that the purpose of eliminating / travel expenses in this situation was to place the grievor in the same ~osition as employees who normally worked in the office. This rationale' is no less arbitrary, as the grievor had a I ~ ---- ---- different premise. He had to have a car to obtain his job as ~ travel was a necessary part of his job. Reimbursement for his expenses was set out in the employer's policy. However, although the employer set out its policy in the Policy .and Procedure Manual, and clarified its terms as it related to field auditors, it disregarded its policy for this assignment. By denying the use of the car for this assignment, the employer acted arbitrarily and contrary to article 24.04(a). Although there are certain similarities to the\ Zonni/Hardy (supra} case, the facts are different. In the Zonni/Hardy case, the employer changed its policy, but the union was unable to show that the grievors were ~required" to use a car, a criteria of article 24.05, as the employer ~rovided the rigors tNansportation to the site. ~n this Case the grievor was required to use a Car and was authorized to do so in the 1983 memorandum. - ~n we find that the employer is ~upd by summary, the~ ~olic¥ and Procedure Manupl. However, the employer did not follow its policy and arbitrarily denied the grievor authorization to use his car to carry out the empIoyer's assignment. Although lengthy argument was wade on the scope of article 24.04(a), we do not find that it is necessary to rule on its scope as the employer is bound ' ~ S to follow its policy on expenses and the employer violated 1t policy. The memorandum provided the authorization that ~as required in the Policy and Procedure Manual for the payment of expenses to field auditors. It created a practi~c~ that was consistently applied. When the employer denied its authorization for' reimbursement, it exercised i~s discretionary right arbitrarily. Although the employer reserved a discretionary right for itself when authorizing expenses, the exercise of its discretion must be exercised in a consistent and non-arbitrary manner. Accordingly, the employer did not follow its current practice concerning meal and expense policy and therefore violated article 24.04(a) of the collective agreement. Therefore, this grievance is upheld and the grievor is to be reimbursed for his parking and kilometrage expenses. We will re~ain seized in the event there is any difficulty with the i~ple~ent~tion of this decision. Dated at Toronto, this 17 day of December, 1992. B. A. Kirkwood, Vice-caairperson Union Member "I D~ssenZ" (dissenZ, az~ached) R. J. Scott, Employer Nominee DISSENT OF EMPLOYER NOMINEE I have considered the majority award and, with respect, canno~ agree with the finding that the Ministry violated 24.04(G) of the Collective Agreement or that it "exercised its discretionary right arbitrarily." There is no question that the employer is bound by the Provisions of Article 24.04 (A} and 24.05(A) with respect to expense policy and kilometrage ~ates. However, that policy, as written, gives the employer clear, and unequivocal discretion as to how and when that policy will be applied and that is where my colleagues and I part company. Therelevant portions of the employer's policy on Travel and Transportation contain the following clear and unambigubus statements: G~N~AL All travelling expenses, within the budgetary limits are to be ' authorized by the emDloyeer*~ Smmed~at9 sunervlso~. AUTOMOTIVE TRAV~.T. An employee, may with suDervtsorv a~nrov~l, drive his or her own automobile on Board business... DISTANCE TRAVELLED . BETWEEN EMPLOYEE'S RESIDENCE AND THE BOARD WORK ~AS~ An employee using his or her own automobile on Board business, will not be allowed to claim for the distance travelled between the employee's residence ~nd ~be ~oard work base unless aDDrgved by ~he Qm~oyee's supervisor. (Emphasis added) AS can be seen from the above, the discretionary right of the employer to approve, or to withhold approval of, the travel expenses at issue in this case should not be open to question. The majority award relies heavily on the memorandum of August 25, 1983, directed to all auditors by Mr. D.J. Lamb, to support the proposition that the employer is prohibited from withholding approval of.:kilometrage and parking expenses from the grievor even though the governing expense policy of the employer clearly reserves that right to the employer. The majority's position would be difficult to challenge if the employer had reversed its travel expense, practice for an employee who continued to perform the regular duties o~ a Field ~,d~to~. However, that is not what happened in this case. ~The grievor, along with two other Field Auditors from Hamilton and twelve, others from Toronto, was advised in writing by his Supervisor that for a period of one month .he would be on a temporary assignment in the Hamilton office. He woUld not be performing his regular duties' as a Field Auditor, duties which resulted in irregular working hours and a great deal of travel within his work area, but would be working regular office hours and performing normal office duties. In other words, the Hamilton office became the grievor's work base during this one month assignment. The grievor was also advised, in the same memorandum, that travel expenses incurred while working in the office would not be paid and this, I suggest, is totally in keeping with the employer's Travel Expense Policy, cited earlier, that says, in part, that an employee will not be allowed to claim for the distance travelled between the employee's residence and the Board work bas9 unless approved by the employee's supervisor. (Emphasis added) The maJorit~~ award states, at page 12, that the memorandum of August 25, 1982 "Provided the authorization that was required in the Policy and Procedure Manual for the payment of expenses to Field Auditors" but I suggest this is stretching the intent of that memorandum beyond its obvious bounds. The memorandum was sent to F~e~d Aud.{tors as a guideline as to how travel expenses would be paid to them wh~e t~eyMere Derform~Da ~he d~t.~es of Field Aud.~torw. The whole thrust of the memorandum relates to work which normally requires the employee to travel from location to location during the work day in the performance of the employer's business. It cannot, I suggest, be stretched to cover employees working in a normal office setting. Employees who work in normal office settings are not paid kilometrage when they drive their own automobiles to work. The majority award also states at page 12, that the memorandum "created a practice that was consistently applied" and ,'when the employer denied its authorization for reimbursement, it exercised its discretionary right arbitrarily". There was evidence before the Board that travel expenses have been paid where one employee filled in for another employee who was ill or on vacation for a short period of time. However, there was no evidence that travel expense had ever been paid in a situation, similar to the one at issue, where 15 employees were taken o~ their regular duties and assigned to different duties in an office setting for an extended period of time. I fail to see how this can be interpreted to be part of a practice that was consistently applied or how it can be said that "the employer did not follow its current practice concerning meal and expense policy and therefore violated Article 24.04(a) of the Collective Agreement." Following this kind of logic, if the employer was in the position where it was necessary to take 50 Field Auditors away from their normal duties and assign them to normal office duties for 6 months or a year, the employer would not be able to use its discretionary right to withhold approval of certain travel expenses. In my view, this is not an interpretation of the employer's policy that the wording of that policy would reasonably bear. Therefore, the employer did not exercise its discretion right arbitrarily and did not violate' Article 24.04(a) of the Collective Agreement and the grievance should have been declined.