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HomeMy WebLinkAbout1989-1352.Cunningham.90-04-26 '"" "'"""*"" ONTARIO EMPLOY,,~$DE£ACOURONN£ :~- ' ' =: CROWN EMPL. O'I/E,~$ DE L 'ON TAR)O : " '~ '~'~' GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS * 180 DUNO.~S STREET WEST. TORONTO, ONTARIO. M5G ?Z$- SUIT'E 2~00 TELEPHONE/T£L[:PHONE rE0, RUE DUNOAS OUES T, TORONTO, (ONTARIO) M5G 1Z8- BUREAU 2100 (476} 5.gS-O688 1352/89 iN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Cunningham) Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer - and - BEFORE: W. Low Vice-Chairperson Eo Seymour Member M. O'Toole Member FOR THE L. Trachuk GRIEVOR: . Counsel Cornish Roland Barristers & Solicitors FOR THE E. Hipfner EMPLOYER: Staff Relations Officer Staff R~iations Branch Management Board of Cabinet HEARING: March 1, 1990 D~CISION The Grievor, Brian Cunningham, is a construction inspector and contract administrator (Service Officer 1) employed since April 14, 1986, by the Metropolitan Toronto Housing Authority. This grievance is brought under Articles 15 and 16 of the Collective Agreement between the Ontario Housing Corporation and the MetrOpolitan Toronto Housing Authority and the Ontario Public Service Employees Union and its Local 592 (January 1, 1986 to December 31, 1988). Articles 15 and 16 of the Collective Agreement are as follows: 15.1 If an employee is required to use his own .automobile on the Employee's business, the following ratesL shall be paid effective April 1, 1985: Kilometers Southern Northern Driven Ontario Ontario 0 - 4,000 km 27.5c/km 28.0c/km 4,001 - 10,700 km 22.0c/km 22.5c/km 10,701 - 24,000 km 18.0c/km 18.5c/km over 24,000 km 15.5c/km t6.0c/km 15.2 Kilometers are accumulated on the basis of a fiscal year (April 1 to March 31, inclusive). 15.3 The use of a privately owned automobile on the Employer's business is not a condition of employment. 16.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the Employer. 16.2 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 carried at the destination. 16.3 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 from the destination until he reaches his home or place of employment. 16.4 When sleeping, accommodation is provided, the hours between eleven (11:00) p.m. and the regular starting time of the employee shall not be credited. 16.5 When an employee is required to travel on his regular day off or a holiday listed in Article 37, Holidays, he shall be credited with. a minimum of four (4) hours. 16.6 All travelling time shall be paid at the employee's basic hourly rate or, where mutually agreed, by compensating leave. This grievance proceeded on the basis of an agreed statement of.fact. Mr. Cunningham lives in Brampton. His office headquarters are at 890 Yonge Street in Toronto where he does his reports, paperwork and telephone calls. He works at 'his headquarters one day a week. The other days of' the week, he visits various building sites, inspecting the employer's buildings. During the course of the day, a number of sites are to be visited. He is required to be at the first of the sites at the start of his shift at 8:30 and is to leave the last of the sites for the day at 4:45, the end of his shift. On field days he is not to go to the office either at the start or. at the close of the day. Mr. Cunningham is not provided- with a car by the employer for purposes of making these visits and therefore uses his own car to do so. The employer has been paying Mr. Cunningham kilometrage based upon the distance from his office at 890 Yonge Street to the first of the sites of the day which he is to visit and from the last site visited during the day to his office instead of the kilometrage from his residence to the first site and from the last site to his residence (kilometrage between sites visited during the course of the day are not in dispute in this grievance). No time allowance is made for travel to the first site of the day to arrive at 8:30 nor for the time required to get from the last site of the day to get back to Mr. Cunningham's residence. The issues are: (a) whether Articles 15 and 16 require the employer to pay kilometrage for Mr. Cunningham to get his car from his home to the first site of the day and from the last site of the day to his home on those days when he is required to perform site visits; and (b) whether Mr. Cunningham is to be credited with the time spent in performing Such travel. It is agreed that the travel takes place outside working hours and that automobile travel is required for purposes of performing the site visits. In order for the Grievor to succeed, the following fcts must be present: 1. Mr. Cunningham is required to use his automobile on the employer,s business; ~ 4 2. The travel done outside working hours is on the employer's business; and 3. .The travel done outside working hours is authorized by the employer. Article 15.3 provides that the use of a privately-owned automobile on the employer's business is not a condition of employment. Therefore, if Mr. Cunningham had no automobile at his disposal which he is able and willing to use for purposes of driving to and among the employer's various building si~' ~s, that one of two things would have to occur for him to perform his inspection duties: either would make his way to the office each working day~ to arrive on time for the start of his shift, and would have to be provided with an automobile for purposes of making his site visits; or would be provided with an automobile to drive direct from his home to the first of the Sites to start his shift and from the last of his site visits to his home. The fact is, however, he is not provided with an automobile but is expected to use his own car both to get to the first and from the last of the sites and to travel among the various sites during the course of the day. He is required to get both himself and his automobile to the first site direct from home in order that he be able to use it to travel from site to site during the 5 course of the day. If the employer has no right under the Collective Agreement to make it a condition of employment to require the use of a private automobile for its business, ~ fortiori it has no right to require an employee to get to work in a private automobile so that the automobile can be made available for use on the employer's business. It is of no legitimate concern to the employer how Mr. Cunningham gets to work. By paying Mr. Cunningham's kilometrage based only on the distance between his office headquarters and the first site, and from the last site to the office headquarters, the employer is de facto making it a requirement that Mr. Cunningham have his automobile~ available at his own expense for use on the employer's business at 8:30 each day that he is to do field inspections. By doing so, it is also applying the "lesser of" principle which was expressly rejected by Arbitrator Kates in the Hayford decision (1398/87). If, as is the case here, the employer requires the employee to use his car to go directly to field locations instead of coming into work in the office, I find as a matter of fact that the employee is being required to use his automobile on the employer's business from the start of his journey to the field location. As for whether travel outside working hours is authorized, it is my view necessary to consider both Article 16.3 and the fact that the employer requires Mr. Cunningham to be at the first of the sites at 8:30 in the morning, the start of his shift. From the time Mr. Cunningham gets into his car at his 6 residence, he.is on a journey at the employer's instructions to arrive at an hour which is the start of his normal shift at a destination which is not his permanent office. In order to do so, he must travel outside working hours, and I conclude that he therefore is authorized to travel outside working hours, thus satisfying the requirements of Article 16.1. The employer has urged upon the Board the argument that Mr. Cunningham is analogous to those peripatetic or "ambulatory" employees of whom there is considerable jurisprudence under Sections 22 and 23 of the Collective Agreement between the Management Board of Cabinet and O.P.S.E.U. it is argued that since Mr. Cunningham spends four/fifths of his working days performing field inspections rather than working in the office, that his travel allowances should be analogous to those applicable to "ambulatory" employees, i.e., by calculation with reference to a "designated headquarters". I am of the view that the jurisprudence relating to "ambulatory" employees under the Management Board of Cabinet Agreement is not particularly helpful or germane to the facts before us in this grievance. The "ambulatory" employee is itinerant; he has no actual office headquarters. The designated headquarters is a fiction created for purposes of calculating various allowances for employees of no fixed employment location (v. Article 38 of the Management Board of Cabinet Agreement). Mr. Cunningham has a real and permanent normal place of employment rather than a fictitious headquarters, and the O.H.C. 7 Agreement has no equivalent to Article 38 in°the Management Board of Cabinet Agreement. In support of its practice of paying him kilometrage only from his office to the first site visit for the day, the employer argues that Mr. Cunningham should bear the equivalen~ of automobile commuting to his office. In my view, this argument is fallacious in light of the fact that the emplOyer has no right to compel or require Mr. Cunningham to use his automobile to get to work at all should he not choose to do so. Counsel for the Grievor adduced in evidence four documents, the admissibility and relevance of which are in issue. Exhibit A was a copy of an Order in Council made June 24, 1980, creating the Metropolitan Toronto Housing Authority; Exhibit B was a copy of the Agreement between the Ontario Housing Corporation and the Metropolitan Toronto Housing Authority. Neither of these documents is of assistance to the Board in determining the issues, although' admissible as relevant in the sense that they provide historical background as to the nature and activities of the parties. Exhibit C is a copy. of a memorandum directed to local housing authorities from Mr. Vic Augustine, the Director and Financial Controller of the Financial Services Branch of the Ministry of Housing. It is. dated May 12, 1989, and provides, inter ali~: "I should also advise you of the results of a recent Grievance Settlement Board award. Previous to this award, employees who travelled directly from their homes to field assignments were compensated for kilometres travelled in accordance with the "lesser of" principle, i.e., from home to destination and return o__r assigned headquarters to destination and return. However, the Board determined that employees must be compensated for all distance while travelling on Ministry business. Accordingly, employees should be compensated for all kilometres travelled while on Ministry business. It should be noted that employees will not be compensated for normal travel from home to assigned headquarters. The following scenario is intended to serve as a guideline. An employee travels from home to the headquarters is required to proceed to a workplace other than the headquarters, and is authorized to return home directly. The employee is entitled to kilometre payment from the headquarters to the workplace and back to home." Exhibit D is a memorandum dated November 9, 1989, to Assistant Deputy Ministers, Executive Directors, Executive Co- Ordinator, Directors, Managers, .Regional Managers, the Chairman of the Rent Review Hearings Board, the Senior Commissioner of the Residential Tenancy Commission. It is authored by J.A. Temple, the General Manager, Corporate Resources Management of. the Ministry of Housing and is in reference to "Changes to Policies, Guidelines and Procedure for Employee Business-Related Expenses". The relevant portion of the memorandum appears at II: "Kilometres Claimed and New Mileage Compensation Rates". It is reproduced hereunder. Kilometves Claimed The boundaries between Northern and Southern Ontario remain the same and are listed in-the Manual of Administration at AD-0202-07. Managers with delegated signing authority for travel expenses are responsible for ensuring that the employee provides sufficient, detail to determine the reasonableness of the kilometres claimed. 9 As a result of a recent Grievance Settlement Board decision, the basis for payment of kilometres claimed has been changed. In the past, transportation costs for a trip were paid from and to the employee's home only if the cost was equal to or less than a trip which started and finished at the usual place of work. The new policy allows ~employees.to be compensated for all kilometres travelled while on Government business. It should be noted that employees will not be compensated for normal travel from home to assigned headquarters. The' following scenarios will provide guidance to administer this new policy: 1. Employee travels from home to the headquarters, remains in the office all day and returns home. Entitlement: No kilometre payment. 2. Employee is authorized to travel from home directly to a workplace other than the headquarters and to return home directly. Entitlement: Full kilometre payment. 3. Employee travels from home to the headquarters, is required to proceed to a workplace other than the headquarters, is later required to return to the headquarters and then travels home. Entitlement: Kilometre payment from the headquarters to the workplace and back to the headquarters. 4. Employee travels from home to the headquarters, is required to proceed to a workplace other than headquarters, and is authorized to return home directly. Entitlement: Kilometre payment from the headquarters to the workplace and back to home. 5. Employee is authorized to travel from home to a workplace other than the headquarters, is later required to return to the headquarters, and then travels home. ' Entitlement: Kilometre payment from home to the workplace and back to the headquarters. Where the employee uses a Government-owned or a leased vehicle, no kilometre payment is made." I do not doubt that these documents are relevant as they directly address the manner in which the employer has interpreted and applied the travel allowance provisions of its collective agreements. These documents are admissible as aids to construing the provisions of the Collective Agreement if there is any ambiguity or uncertainty in the language of the Agreement. In my view, the language of Article 15.1 is not devoid of ambiguity. It is not clear whether the phrase "on the employer's business" includes or excludes the process of getting to the location of that business where the location is other than the normal and permanent place of employment and the commencement of the journey is the employee's residence rather than the permanent place 9f employment. ACcordingly, it is my view that extrinsic materials which assist in clarifying the ambiguity are admissible. Exhibit D is evidence of the manner in which the Ministry applies the kilometrage allowance .provisions, and thus is evidence of the intention of the parties in the use of the language found in the Collective Agreement. Item 2' in the sample scenarios at Exhibit D provides that where an employee is authorized to travel directly to a workplace other than the headquarters and to return home directly, full kilometre payment is to be allowed. This is precisely the fact situation in which 11 the parties ~ind themselves in this grievance. Although in coming to my.construction of the phrase, I do not rely solely on Exhibits C and .D, in my view, the memoranda of the Ministry support the construction which we have placed upon the phrase "on the employer's business". in the result, I am of the view that on the present facts, Mr. Cunningham is entitled to his' kilometrage from his residence to the first site of the day and from the last site of the day to his residence, as well as time allowance therefor and the grievance is accordingly allowed. The question of quantum was not addressed in argument, and in the event that the parties are unable to 'agree to a quantum, this panel will remain seized for purposes of receiving submissions on that issue. DATED at Toronto, this 26th day of April, 1990. WA~i.~ I~OW, Vice-Chairperson E. SEYMOUR Member "I dissent" (Dissent attached) M. O'Toole, Member D ?' $ S E N T 1352/89 OPSEU (Cunningham) and The Crown in Right of Ontario (Ministry of Housing) It is a well-established principle of labour relations law that an employee should bear the cost of getting to and from work. The majority have, in effect, decided that on those days the grievor works in the field he should not bear .such cost; rather the employer should.' I can find no warrant for this result in either the facts or the relevant provisions of the Collective Agreement and, accordingly, I must dissent. In my opinion the majority have erred by making several findings of either fact or mixed law and fact which are wrong. These are set out below: First, the majority find at page 4 that the grievor "is required to get both himself and his automobile to the fi.rst site direct from home in order that he be able to use it to travel 'fcom site to site during the course of the day." The b~sis for the above finding is stated at page 5 to be the employer's practice of "paying Mr. Cunningham's kilometres based only on the distance between his office headquarters and the first site, and from the last site to the office headquarters." It is submitted that the latter practice establishes exactly the opposite of the finding made by the majority, namely, that for reasons of convenience and efficiency that are mutually advantageous to the parties, on those days that the grievor is in the field he is permitted not required, to drive his vehicle directly from his home to the first site to be inspected and to drive directly home from the last such site. If properly characterized this arrangement does not constitute a unilateral requirement by the employer that the grievor "have his automobile available at his own expense for use on the employer's business at 8:30 each day that he is to do field inspections.". Rather it reflects an arrangement mutually arrived at that is mutually beneficial. This can be inferred from the following facts: 1) On the day the gkievor reports to his headquarters, he drives to work for which he receives no mileage or time credits. On the days the grievor drives directly to the field the distance of his commuting trip to and from work may be shortened by a few kilometres. 3) The very location of the grlevor's home in Brampton, over which the employer has no control, tends to favour automobile travel as the most convenient means of commuting to and from work. The second wrong finding of the majority is at page 5 wherein they state that by requiring an employee "to use his car to go directly to field locations instead of coming into work in the office, I find as a matter of fact that the employee is being required to use his automobile on the employer's business from the start of the journey to the field location." It is submitted, pursuant to Dymond 377/82 (Roberts) page 10, that for travel to qualify as being "on the employer's business" the employee while travelling must discharge some employment related responsibility. On the facts of the instant case, the grievor has no more respon$ibilfty to the employer while travelling directly to the field than while travelling to hfs headquarters. In either case employment responsibilities only commence when he arrives at the work location. Accordingly, until that time the grievor is not "on the employer's business." It is submitted that Hayford is not contrary to the above conclusion because there the Board essentially determined at page 10 that the employer, by voluntarily reimbursing the grievor for time credits while travelling to and from his residence, had conceded that the grievor was "on the employer's business" for the purpose of mileage credits. That is not the case here.. The third wrong finding of the majority is at page 5 where they state that the employer is applying the "lesser of principle which was expressly rejected by Arbitrator Kates in Hayford". It is submitted that the facts in the case at hand are · substantially different from those in Ha~ford and that, accordingly, neither the "lesser of"'principle nor the decision in Hayford are applicable. In Hayford the grievor, who regularly reported for work to a fixed location, namely, a Correctional Centre, was assigned to attend a training course at some distance from such location. The Board found that the grievor was .required on "infrequent occasions" to travel outside such location and the only time the grievor would have occasion to make a claim for travel all'owance would be where required to attend a training course away from such location. The situation of the grievor in this case bears no resemblance at all to that of the grievor in Hayford. Mr. Cunningham for four of his five working days is regularly assigned to visit a fixed number of sites within a fixed geographical area. This is quite unlike an "infrequent" assignment to attend a training course. Accordingly, Hayford is no authority for holding, as the majority do, that the employer is applying the "lesser of" principle in the circumstances of this case. The fourth wrong finding of the majority 'is at page 5 where they state that "from the time Mr. Cunningham gets into his car at his residence, he is on a journey at the employer's instructions to arrive St an hour which is the start of his normal shift at a destination which is. not his permanent office. In order to do so, he must travel' outside working hours, and I conclude that he therefore is authorized to travel outside working hours, thus satisfying the requirements of Article 16.1". It is submitted that, by using the words "permanent office" in the foregoing statement, the majority have put a gloss on Article I6.3 which is not justified by the actual language of the Article and, in fact, defeats its true intent. The actual operative words in Article 16.3 are "place of employment". As mentioned previously, Mr. Cunningham spends four out of five days visiting a fixed number of building sites owned by his employer within a fixed geographical area. At all material times while in the field, except when travelling in his car, the grievor performs his duties on the employer's premises. There can be no doubt that such premises together with his headquarters constitute his "place of employment". The grievor's situation is quite unlike that of the grievor' in D~mond who was a Correctional Officer assigned to duty in a hospital which was not his employer's premises. Accordingly, the-grievor's status while travelling to the building sites is no different from his status while travelling to his headquarters. He is travelling to and from work which is properly on his own time and at his own expense. Thus there is no justification for the majority's conclusion that the requirements of Article 16.1 are satisfied. Moreover, as pointed out previously, the grievor is responsibility-free while travelling to the building sites and therefore cannot be said to be on the employer's business which, according to Dymond, is a requirement that must be present to invoke the comparabl® article of the Collective Agreement between OPSEU and Management Board of Cabinet. The f%fth wrong finding of the majority is at page 10 where they state that the term "on the employer's business" is "not devoid of ambiguity" on the-question of whether it "includes or excludes the process of getting to the location of that business where the location is other than the normal and permanent place of employment and the commencement of the journey is the employee's residence rather than the permanent place of employment" and therefore extrinsic evidence in the form of Exhibits C and D are admissible. It is submitted that the above finding is unjustified for the following reasons: 1) Both parties took the position at the hearing that the term "on the employer's business" is clear and unambiguous. The Union did not seek to have the documents admitted to clarify any ambiguity in the above phrase but merely to bar the employer from making any argument inconsistent with the documents. The latter position is a species of estoppel argument and clearly is not sustainable as the requisites for estoppel were not proven .by the Union. 2) In light of the considerable body of jurisprudence of this Board interpreting the phrase there is no valid basis for considering it ambiguous. 3) The location of the building sites constitute part o'f "the normal and permanent place of employment" of the grievor for reasons stated previously. Accordingly, there is no evidentiary basis for admitting Exhibits C and D. Moreover, it should be noted that Exhibit D was generated after the filing of the grievance. Normally such evidence is excluded. In the result, I would have found that the requirements of Article 15 and 16 are not satisfied on the present facts and therefore would have dismissed the grievance. M. F. O'Toole, Member