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Home My WebLink About1989-1243.Pranas.91-01-29 ONTARIO EMPL 0 Y~S DE LA COUBONNE CROWN EMPLOY£E$ DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR/'C'. MSG iZ8 TELEPHONE/Tr~Lr~pHONE: (416) 326-t3a8 180, RUE OUNDA$ OUEST, BUREAU 2tO0, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/T~_L~COPIE : (476] 326-T396 IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE (Local 3096) (Pranas) Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Hamilton Wentworth Housing Authority Employer BEFORE: N. Dissanayake Vice-Chairperson G. Majesky Member A. Merritt Member FOR THE S. Pranas FOR THE I. Werker EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEB/~ING: August 27, 1990 December 20, 1990 AWARD I This is the individual grievance of Mr. Siulys Pranas, an employee of the Hamilton Wentworth Housing Authority. The grievance states: In regards to memorandum sent to union employe~s under'article 26.01 dated May 31, 89. Regarding a change in gas mileage cost per kilometre. I was not paid properly for the month of June regarding the use of my truck. The remedy sought is "I would like to be paid properly for the use of my truck." The Union did not participate in ~his proceeding. The grievor represented himself and was assisted by a union steward, Mro James Jones, who appeared in. his personal capacity. Quite understandably, the grievor had difficulty articulating the nature of the grievance and the basis for his claim. Ultimately, we were able to narrow down his grievance to three claims. First, he claims that he has.not been paid his mileage claim submitted for the month of June 1989. Secondly, he claims the amount of $ 11,571.99 for the use of his truck on Ministry business over the last five years. Finally, he claims damages in the amount of $ 3,000.00 for "pain and suffering" resulting from what he claims to be false information provided to Revenue Canada by the Employer. 3 The only provision in the applicable collective agreement dealing with the use of private vehicles on business of the Employer in article 26.01. It reads: ARTICLE 26 - MILEAGE RATES 26.01 The Employer agrees to reimburse all employees who elect to use their private automobile on business of the Employer at the prevailing mileage rates as provided by the Government of Ontario for public service employees. Mileage for the purpose of the foregoing accumulates from the 1st day of January in each calendar year The foregoing mileage rates are inclusive; no claim shall be allowed for repair-, storage, maintenance, operation, etc. June 1989 Travel claim The evidence is that it was not the practice of the Employer to pay for mileage for travel from a work site to the home of an employee. Then on May 31, 1989, 'Mr. Bob Campbell, Manager Finance and Administration of the Housing Authority issued a memorandum to all employees, announcing among other things, that effective June 1, 1989, "The Employee is entitled to kilometre payment from the headquarters to the workplace and back to home". (Emphasis added) On June 16, 1989 the grievor filed a travel expense claim which included the travel each day from his work site ~to his home. Understandably, he expected to be Dgid for the~ 4 travel to his home according to what he understood was the new policy announced on May 31, 1989. The Employer refused to pay the claims for the trips back home~ The grievor refused to accept any payment unless the Employer agreed to pay the total amount claimed, including the trips to his home% The evidence is that -since the issuance of the memorandum of May 31, 1989, the Employer had a concern that it may have been in error as far as the return trip home is concerned. Therefore, the Employer decided to seek clarification whether indeed the policy had been changed so as to entitle employees to payment f~r trips back to their' homes. By memorandum dated July 19, 1989, the management were informed of this concern and were advised that "any mileage that falls into the "grey" area since June 1, 1989 should be recorded and held until clarification on the proper procedure is received". It was as a result of this development that the grievor's claim was denied. At the hearing the EmDloyer took the Dosition that since it was the memorandum it issued on May 31, 1989, that gave the grievor the expectation that he will be paid for trips back home, and since the amount' of money payable under the June 1989 claim for the trips home was nominal, it .would agree, on a.without prejudice basis, to a consent order that 5 the Employer pay the full amount claimed by the grievor in the travel expense claim in question (Exhibit #4) including for the trips back home. The Employer, however, made it clear that it does not concede in any way that its agreement to Day is based on any entitlement of the grievor or an admission of a violation of the'collective agreement on its part. As already noted, this is not a policy grievance, but an individual grievance claiming non-payment of a particular travel claim. Therefore, the position taken by the Employer fully resolves that aspect of the grievance relating to the June 1989 travel expense claim. Truck costs Regarding the claim for the expenses of running the grievor's truck, the grievor readily concedes that there is nothing 'in the collective agreement entitling him to payment for truck costs. His claim appears to be based on his position that the truck is being' used on the Employer's business on a full-time basis because he stores work related material in the truck 24 hours a day and that it costs more to maintain a truck than the mileage payments provided for in article 26.01. 6 Whatever the equities of his claim may be, the fact remains that this Board has no jurisdiction other than that conferred upon it by the collective agreement and the Crown Employees Collective BarGaining Act. It is conceded that there is nothing in the collective agreement other than article 26.01, entitling employees to payment for use of private vehicles. It is not quite accurate to state that there is nothing in the collective agreement regarding operating costs of a vehicle. The last paragraph of article 26.01 (suDra p.3) explicitly states that the mileage rates are inclusive of costs relating to "repair, storage, maintenance, operation etc." The grievor relied on section 12(2)(d) of the Crown Employees Collective Bargaining Act as a basis for granting the relief requested. That section reads: 12(2) In the conduct of proceedings before it and in rendering a decision in respect of a matter in dispute, the board shall consider any factor that to it appears to be relevant to the matter in dispute including: (d) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered. This section clearly has no relevance or application to the Grievance Settlement Board. Section 7 and 8 of the Act deals with "Negotiation of Collective Agreements". Section 9 deals with "mediation". The next several sections, including section 12, obviously deal with interest arbitration boards established to determine the terms of a collective agreement~ The reference to "the board" in section~ 12 is a reference to an interest arbitration board and not to this board. This Board has no authority to "establish terms and ~conditions of employment" as contemplated by section 12.' Shat is a function of collective bargaining and if that fails, of an interest arbitration board. Therefore we have no jurisdiction either under the collective agreement or the Act relating to the claim for the costs of operating the truck and that aspect of the grievance must fail. DamaGes for pain and suffering The claim for damages for pain and suffering apparently arises out of an allegation'that the Employer advised Revenue Canada that the grie~or did not require the use of his truck as a condition of employment. We had no direct evidence relating to this apart from the grievor's own allegation. In any event, assuming the allegation to be true, as with the claim relating to the truck Costs, the collective agreement and the Act do not confer upon this Board any jurisdiction to grant the relief requested. For that reason, the claim for damages 'for pain and suffering must also be dismissed. 8 In the result the only remedy the Board has jurisdiction to provide is in the form of a consent order relating to the travel expense claim for June 1989 (exhibit No.4) submitted 'by the grievor. The Employer is directed to pay to the grievor the full amount of that claim. This direction is solely based on consent and not on the basis of any finding or admission of violation of the collective agreement. The Board remains seized only for the limited purpose of resolving any disagreement between the parties as to the amount payable under the June 1989 travel expense claim. Dated this ~9th- day of 7January 1991 at Hamilton, Ontario N. Dissanayake Vice-Chairperson G. Maj esk¥ Member A. Merritt Member