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HomeMy WebLinkAbout1989-0999.Policy, Stasiulis & Z· . ~ ONTARIO EMPLOYES OE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SE'R'LEMENT RI GLEMENT BOARD DES GRIEFS I80 DUNDAS STREET WEST, SUITE 2t00, TORONTO ON M5G 1Z8 TELEPNONE/T~'L~PHONE : (416) 326-1388 t80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/T~L~COPIE : (416) 326- ;~396 GSB# 999/89, 169/90, 170/90 CUPE LOCAL 1750 IN THE MATTER OF AN ARBITRATION Un4er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE (Policy/Stasiulis/Ziliotto) Grievor - and - The Crown in Right of Ontario (Workers' Compensation Board) Employer BEFORE: E. Marszewski Vice-Chairperson P. Klym Member D. Montrose Member FOR THE M. Wright GRIEVOR Counsel Sack, Goldblatt, Mitchell Barristers & Solicitors FOR THE P. Young EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING .February 4, 1993 March 3, 1994 DECISION By a grievance dated April 25, 1989, the Union has alleged that the Board discontinued an established practise with respect to the payment of travel expenses contrary to Article 24 of the Collective Agreement. The Union Policy Grievance reads as follows: Statement of Grievance It has always been the established practice, to pay Field employees for kilometreage rates and parking when travelling from their residence, by private or Board vehicle, to their reporting office and further to pay the lunch meal allowance as per distance from the reporting office and not" as the crow flys". Recently the Board has attempted to discontinue this practice. Discontinuance of this established practice violates our Collective Agreement. Settlement Required That the Employer abide by the terms of the Article 24 of the Collective Agreement and pay said expenses to field employees from the date of discontinuation and for all occasions in future. In addition, by Grievance dated April 25, 1989, Mr. Linas Stasiulis grieved as follows: Statement of Grievance It has been the established practise to reimburse the expense of kilometrage rates for travel by private or Board Vehicle between my residence and reporting office and reimburse parking at the office. Since the week commencing March 13, 89, I have been unjustly denied this reimbursement. Settlement Required Established practice continue. That I be paid/reimbursed km. rates for travel between my residence and reporting office and reimbursed for parking at the office for all occasions commencing March 13/89 and future. On January 12, 1990, Mr. Lawrence Ziliotto also grieved that the Board had breached Article 24 of the Collective Agreement for essentially the same reasons as specified in the Stasiulis grievance. The parties agreed to proceed with the Stasiulis grievance and the policy grievance first, and to adjourn the Ziliotto grievance and all other and related grievances sine die pending a determination in the S~asiulis and policy grievances. Stasiulis was a Rehabilitation Counsellor from Central Ontario - South Unit. He was primarily a field worker who spent four days per week visiting and counselling injured employees in the field: at their homes, at the scene of the accident at the employer's premises, at training programs and at their doctors' offices. Although most of the field work took place in Scarborough, the Grievor also performed a large proportion of his work at his place of residence in Terra Cotta, located north of Metro Toronto. On th~ fifth day of each week, Stasiulis was expected to come into the office near Bloor and Yonge to review reports, schedule appointments, meet with other staff, look through the mail and pick up new referrals. However, since Stasiulis also spent part of the fifth day in his automobile making field calls, he always used his automobile to go to work on the fifth day. In the past, Stasiulis had been compensated for his work related travel expenses incurred during the fifth day of his work week in accordance with the Board's Expense Account Policy 62-06-01. The relevant portions of the Expense Account Policy 62- 06-01 read as follows: 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. Under no circumstances does the Board require an employee to incur reasonable and necessary expenses for the conduct of Board business, without reimbursement within the approved guidelines, as a condition of employment. TRAVEL AND TRANSPORTATION GENERAL All travelling expenses within budgetary limites 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. METHOD OF TRANSPORTATION The method of transportation used will be that which involves the least ~xpense to the board considering both the dollar cost and the travelling time involved. PUBLIC TRANSPORTATION Where public transportation is used by an employee on Board business, the expense will be reimbursed. AUTOMOBILE TRAVEL An employee may, with supervisory approval, drive his or her own automobile on Board business. Where business travel exceeds 24,000 kilometers ina calendar year, the employee may make application to have a Board vehicle provided. REIMBURSEMENT FOR AUTOMOBILE EXPENSES Reimbursement will be paid in accordance with the approved Kilometer Allowance schedule as set out below. DISTANCE TRAVELLED BETWEEN EMPLOYEE'S RESIDENCE AND THE BOARD WORK 'BASE An employee using his of her own automobile or a Board 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. By memorandum dated april 13, 1989, effective March 13, 1989, the Board revoked the supervisory approval for Stasiulis' use of his automobile to go to work the fifth day of the week that being his "designated reporting day". The April 13, 1989 memorandum required Stasiulis, and others in his position, to spend the entire designated reporting day in the office so that field calls were no longer required on that day. Therefore, the employees were neither compensated for parking nor paid the usual kilometrage rates if they drove thier cars to work on that day. Instead, the employees,.were to be paid $2.20 for the day for bus fare and Stasiulis was to be reimbursed for his transportation to and from the office on the assumption that he would use the GO- train service closest to his home. Apart from the requirement to eliminate field calls on the designated reporting day, the nature of the Stasiulis' work did not change. The goal of the new policy was to have the employees use, one the "designated reporting day" the method of transportation "which involved the least expense to the Board". Stasiulis' place of residence was 65 kilometres (one-way) from the 2 Bloor Street East office. He refused to use the Go train to travel to work on the designated'one day per week and instead continued to drive his car to work and continued to submit his travel expense sheets. The Board declined to re-imburse hims._ for the mileage charges and paid him the equivalent of two public. transport tickets. The history behind the April 13, 1989 memorandum may be briefly set out as follows. Early in 1989, the Board held meetings with the Central Ontario south caseworkers at which time members had the opportunity to ask-questions about the implementation of~-a new expense policy. The Board's answers to these questions were contained in a March 8, 1989 memorandum, excerpts of which are reprinted as follows: 1. Expense Accounts: The implementation of the new expense account policy will be delayed until the summer of 1989. In its absence, the management of Central Ontario South has decided that the present expense account policy will be used as a guide for the travel expenses for all of our field staff. Therefore, on designated days in office the Counsellor/Caseworker will use the most economical means of transportation to reach Head Office. This of course, means travel by TTC. Hence, Counsellors/Caseworkers will be reimbursed at a rate of $2.20 per day. If circumstances dictate an exception to this rule, the individual person should see their appropriate Manager for exception to this rule. - 6 - 2. Days in Office: The Caseworkers were advised at the last meeting I conducted with them, that they were to discuss with their appropriate Supervisor their specific days in office. With the caseloads at their volume, it was determined that 3 days in office would be appropriate. However, as caseloads grow or if an exception is noted, these exceptions should be discussed with the Supervisor to determine change(sic) to the aboYe-noted guideline. 3. Scheduling of ApDointments: As was discussed with the Caseworkers, ~he scheduling of their appointments was to be discussed with their appropriate Supervisor. This was to allow the Supervisor to have input into how, when, where appointments are being arranged in order to ensure that we are complying with the Strategy philosophy. This discussion will also allow the'Supe~visor to advise the Phone Clerks of the anticipated whereabouts of the Caseworkers on their days out of office. 5. General Overall Expenses: As per the expense account policy, lunch will be reimbursed to a maximum of $7.50 when a field staff member incurs an expense for lunch when they are out of office over the lunch break and more than 24 kilometres away from Head Office. Subsequently, an April 13, 1989 memorandum entitled Employee Expense Accounts, went to Stasiulis and the other employees. The memorandum read as follows: Further to our recent conversations, the following will oonfirm the present status of expense accounts. On your designated day in the office, you will be required to 'use the most economical means of transportation to reach the Board's Head Office. This is in keeping with the Board's expense account policy, 62- 06-01, page 4. Therefore on that day you will be required to travel by TTC and reimbursement will be made at the rate of $2.20 per day. This is outlined in the attached IDC dated March 8, 1989 by Mary McMerty, - 7 - Manager, Central Ontario South. As far as Linas' situation is concerned, reimbursement for transportation utilizing the GO service closest to his home can be reimbursed for his day in the office. Since this information was verbally conveyed to you during the week ending March 10, 1989 by Mary McMerty, the above has been in effect since the week commencing March 13, 1989. Therefore, expense accounts submitted will be adjusted to reflect the above. The new policy was also set out in the following April~ 26, 1989, Inter-office Communication, entitled Expense Account Policy, from the Board to all Program Heads, Client services: Prior to the reorganization in 1987 vario6~ practices and guidelines relating to the Expense Account Policy were administered by the Vocational Rehabilitation, Claims, and Finance Divisions. Now that those Divisions no longer exist, some of these practices have become invalid. In order to ensure consistency and compliance with the existing policy, we ask that you refresh yourselves and your management staff by reading the Expense Account Policy 62-02-01. Please pay particular attention to the section on Method of Transportation. "The Method of Transportation used will be that which involves the least expense to the Board considering both the dollar cost and the travelling time involved". When applying this section of the policy, consideration can be given to the utilization of public transportation. The new policy was explained in a letter dated May 8, 1989, from the Board to CUPE Local 1750. Relevant excerpts from this letter read as follows: The issue as I Understand it is that in the past all vocational rehabilitation counsellors have been paid for mileage and parking when attending at their reporting - 8 - office on their designated reporting days, and now some of these employees are being advised that they will only be paid for the cost of using public transit when travelling to their reporting office. Additionally the policy grievance raised the issue of lunch meal costs only being paid on the basis of "as the crow flies" distance from the reporting office and not road distance from that office. Subsequent to our discuss on, I have been advised that a memorandum has been issued to all Program Heads in Client Services Division drawing to their attention the need to ensure that when staff are paid to travel on Board business, they should, in accordance With the Expense Account Policy, use the method of transportation, "which involves the least expense to the Board..." A copy of this memorandum is attached for your information. I understand that previously there were field staff in the Vocational Rehabilitation, claims and Finance Divisions and each of these divisions had different practices and guidelines relating to the Expense Account Policy which was for Board-wide application. The three divisions mentioned above no longer exist. Now all field staff work in one division, Client Services. What has been done is to rationalize the differing practices and guidelines to ensure that all field staff are treated with consistency when it comes to the application of the Board's Expense Account Policy. In this regard, I cannot see that there is any violation of the collective agreement or the Expense Account Policy as it applies to all Board employees. Travel expenses were paid in the past when going to and from the reporting office on designated reporting days. That practice is continuing, the only thing that has changed, in keeping with the Expense Account Policy, is that the means of transportation to be used has been defined so as to have consistency among all field staff. It was the Union's position that a practise with respect to meal and travel expenses had been established and that the Board was precluded from uarying the practice mid-contract. In addition, the Union submitted that the practise further to the Board's Expense Account Policy 62-06-01 had been incorporated into the terms of the collective agreement by virtue of the wording of - 9 - ArtiCle 24.04. Article 24.04 and ~4.05 of the collective agreement read. as follows: 24.04 Meal Allowance (a) The current practice concerning meal and expense policy will be continued for the duration of this Agreement. The daily meal allowance for three meals in a day is subject to a maximum daily allowance of $23.00. This amount is itemized as follows: 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: Effective May 30, 1990: · · . It was thus su tt d on behalf of the Union that the Board could not change the practise which had been incorporated into the terms of the Collective Agreement until the next contract negotiations took place. Counsel for the Union referred .to the following cases in support of this propoSition: CUPE and The Crown in Right of Ontario (Workers' Compensation Board) and Zonni, Unreported decision, April 25, 1991, B. Kirkwood, CUPE 1750 and The Crown in Right of Ontario (Workers' Compensation Board) and Shaw, Unreported decision, May 29, 1992, B. Kirkwood. Counsel for the Union therefore argued that the Employer was estopped from changing the policy or the practise and was required to negotiate this issue at the next contract negotiations. The Union sought a declaration that the Board to compensate the employees in question for their kilometrage to and from the office and for all of their parking charges on a "designated reporting day". Counsel for the Board took the position that the principle of estoppel could not apply since there was no evidence of detrimental reliance on the part of the Union as the Union had received notice from the Board with respect to the Board's intention to change the Expense Account Policy practise. Counsel for the Board submitted that Union should have dealt ~ith this issue during the set of negotiations following the date when the Union had received notice of the changes. It was submitted that management has an unfettered right to change a practise and its related policy at the end of the term of a collective agreement. In addition to the above submissions, Counsel for the Employer raised, more fundamentally, a jurisdictional issue which, in his view, precluded this Board from dealing with this case in any event. Mr. Young submitted that in view of the decision of the Divisional Court in the case of Oueen in Right of Ontario (Liquor Licence Board of Ontario) vs. Ontario Liquor Board Employees Union and the Crown Employees Grievance Settlement Board, (Unreported) November 2, 1992, O'Leary, Hartt and Smith, J.J., in which it was determined that the use of a car by an employee to go to work was, in that case, a "work method" and therefore, pursuant to Section 18(1) of the Crown Employees Collective Bargaining Act, 'not subject to collective bargaining. Counsel for the Union submitted in reply that ~he Divisional Court's decision was irrelevant to this case since the issue in the instant case involves the Employer's ability to change its practice with respect to its expense p~licy mid-contract, a matter which is clearly bargainable since it addresses the issue of total compensation, a term or condition of employment as defined by Section 7 of the Crown Employees Collective Bargaininq Act. Jurisdictional Issue: Prior to considering any of the other issues raised in this case, it is necessary to consider the jurisdictional issue raised by Counsel for the Employer. It is trite law that a jurisdictional issue cannot be waived, even when it has not been raised during a hearing. In this case, the jurisdictional issue was raised by correspondence after the hearing and the Board re- convened in order to hear the parties' submissions with respect to this issue. .There was no objection from Union Counsel to a further hearing with respect to the jurisdictional issue. The jurisdictional issue arises from the application of Sections 7, 18, and 40 of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, to the facts of this case. These - 12 - sections read as follows: 7. Upon being granted representation rights, the employee organization is authorized to bargain with the employer on terms and conditions of employment, except as to matters that are exclusively the function of the employer under subsection 18(1), and, without limiting the generality of the foregoing, including rates of remuneration, hours of work, overtime and other premium allowance for work performed, the mileage rate payable to an employee for miles travelled when he is required to use his own automobile on the employer's business, ...~ 18. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, whithout 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; and and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. 40.-(1) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee, the question may be referred to the Tribunal and its decision thereon is final' and binding for all purposes. (2) if, in the course of bargaining for a collective agreement or during proceedings before a board of arbitration, a question arises as to whether a matter comes within the scope of collective bargaining under this Act, either party or the board of arbitration may refer the question to the Tribunal and its decision thereon is final and binding for all purposes. The first 'issue which must be addressed if whether a panel of the Grievance Settlement Board is a board of arbitration within the meaning of Section 40(2) of C.E.C.B.A., for if it is then the jurisdictional issue must be referred to the Tribunal for determination. Section 18 of C.E.C.B.A. provides that if a matter falls within the Board's exclusive management function, such as "the right to determine"..."work methods and procedures", then such a matter "will not be subject of collective bargaining nor come within the jurisdiction of a board". We find that it is consistent with the purpose of this section to find, as we do, that the word 'board' in Section 18 refers to the type o$ board of arbitration which is an adjunct to or avenue of last resort for collective~.~ bargaining, that being an interest board of arbitration. Article 1(1) (c) of C.E.C.B.A. defines a "board" as "a board of arbitration established under this Act", meaning an interest board. In addition, we note that references to the Grievance Settlement Board in C.E.CoB.A., such as for example, in Section 19, are stated as references to "the Grievance Settlement Board" or "to the Board" rather than "a board". This position has also been taken in the case of OLBEU and The Crown in Right of Ontario (Liquor Licence Board of Ontario,, Unreported Grievance Settlement Board decision, November 4. 1988 (J.W.Samuels). We therefore find that this panel of the Grievance Settlement Board is not precluded by Sections 18 or 40 of C.E.C.B.A. from making'a determination with respect to the jurisdictional issue put before it in that this panel is not covered by the term "board" as used in Sections 18 and 40 of C.E.C.B.A. The main jurisdictional issue is whether or not the Grievor's use of his car for work purposes on the "designated - 14 - reporting day" constituted a "work method" was therefore Within management's exclusive right to direct or whether the use of the employee's car was a "term or condition of employment" and therefore bargainable and subject to the provisions of the collective agreement. The basis for the decision of the Divisional Court in the L.L.B.O. case (supra) was the dissent written by Board Member Collict case when the case was decided at the Grievance Settlement Board level. Mr. Collict was of the view that the use of a vehicle ~as a "work method", the use of a "piece of equipment", or a "procedure", pursuant to the terms of Section 18(1)(a) of C.E.C.B.A. and therefore, subject to the sole discretion of management. Consequently, he was of the view that the Grievor's use of a motor vehicle could "not be the subject of collective bargaining nor come within the jurisdiction of a Board". Mr. Collict's view was upheld on judicial review by the Divisional Court in the L.L.B.O. case. Mr. Justice O'Leary disposed of the application for judicial review with the following endorsement: The substantial issue before us is whether the use by an employee of his or her own car, is a condition of employment that could under Section 7 of the Crown employees Collective Bargaining Act, be a matter that may be dealt with in the collective agreement, or whether it is a "work method" that cannot be bargained about, by virtue of Section 18(1) of that Act. We adopt the reasoning of the board member F.T.Collict who dissented in the decision of the Board. In our view it was patently unreasonable for the majority to conclude as they did that the use by an employee of his or her own car may at times not be a "work method" and so be subject to bargaining. In our view Sec. 18(1) is clear and "work.method" cannot be subject to collective bargaining. The application is therefore allowed. No order as to costs. In view of the endorsement of the Divisional Court in the L.L.B.O. case, we find that an employee's authorized use of a motor vehicle for work purposes constitutes ~ "work method" and is therefore not bargainable. In other words, if an employee's use of a motor vehicle for work purposes is not authorized by the Board, the Board's refusal to compensate the employee for kilometrage or parking expenses is neither bargainable nor grievable. However, the actUal mileage rate which employees are to be paid is a "term and condition of employment" and therefore bargainable. Conclusion: We have reviewed and considered all of the evidence and submissions of both parties and find that on the particular facts of this case, the employer has the right to determine the means and type of transportation to be used by employees for work purposes on the basis that the type of transportation to be used for work purposes falls within the category of "work method", within the meaning of Section 18(1) of C.E.C.B.A and is therefore not subject to collective bargaining. However, the expense policy applicable to compensate employees for work-related travelling expenses, where the travel has taken place by employer-authorized means of - 16 - transportation, is subject to collective bargaining. The grievances are therefore dismissed. Dated at Toronto this 21st day of February, 1995. Eva E. Mar ' ' Vice-Chairperson I concur .. .L D. M Member / Addendum attached. ADDEMDtlI4 999/89, 169/90, 170/90~ ( POLI CY/STASI ULIS/Z I L I OTTO0 WORKERS' COMPENSATION BOARD In addition to the jurisdictional issue raised by the parties, considerable time was spent dealing with submission relating to the use of the phrase "expense policy" as contained in Article 2~.O~(a). In both the Zonni and'Shaw, the boards of arbitration interpreted the expression "expense policy" as contained in subparagraph (a) of Article 24.04, entitled "meal allowance", to also refer to non-food related expenses such as "Kilometrage Rates" (the subject of the next Article, Article 24.05). I do not agree with this interpretation. Had 'the parties intended to deal with meal allowances and travel and Kilmometrage Rates together, they would not have devoted two seprate Articles in the collective agreement, one for meals and the other for kilometrage'rates, but instead, the two categories would have been dealt with together. The parties have in fact devoted a separate article to each of "Meal Allowances" and "Kilometrage Rates" It is also clear from a reading of the full text of Article 24.04 that the article is designed to establish the parameters for compensating employees for meals, within a set of monetary limits, and such additional or other "reasonable expenses...upon the provision of%..receipts for all meal expenditures..."(per Article 2~.04(b)) above the amounts set out by the specified meal allowance amounts. Article 24.04 must refer to meal and meal-related expenses only, as set out in greater detail in each of subsection (a), (b) and (c) of Article 24.04. The conclusion might have been different had Article 24.04 not contained sub-paragraphs (b) and (c), each of which amplifies the circumstances under which employees are entitled to recover monies spent by them on food while they are performing duties in the course of their employment. There is no wording in any subsection of Article 24.04 which might permit an interpretation which would enlarge the context of the article from meal and food related expenses to such other items as travel, transportation or mileage. If Article 24.04 incorporates the Workers' Compensation Board Policy which respect to expense accounts, it does so only with respect to those portions of the Expense Account Policy which pertain to food and meal expenses. There is no ambiguity in the wording of Article 24.04 which would trigger an investigation of any past practise established by the parties with repsect to their interpretation of Article 24.04, The interpretation of Article 24.04 is strengthened by reading Article 24.05. In contrast to the wording actually.used in Article 2~.0~, the wording of Article 24.05 is very simple and pertains only to Kilometrage Rates. Article 24.05 contains no reference to an expense policy. Apart from the fact that Article 24.05 follows Article 24.0~ in the collective agreement, the two articles are totally different in form~structure and content and it is impossible to incorporate by implication any of the terms of Article 24.04 into Article 24.05. Finally, Article 24.05 is not ambiguous and therefore the parties' past practise with respect to the interpretation or application of Board's Expense Account Policy cannot be taken into consideration. D.C. Montrose