HomeMy WebLinkAbout1989-1525.Bott & Prosser.91-06-14"~ ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPL 0 YEES DE L'ONTA
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
'BOARD DES GRIEFS
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ZNTNE I~tTTER OF
Un4er
THE CROWN F~PLOYEE8 COLLECTIVE
Be~o~e
~ G~I~CE BBTT~~ BO~
BETWEEN
OPSEU (Bott/Prosser)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Revenue)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
F. Taylor -Member
D. Daugharty Member
FOR THE R. Stoykewych
GRIEVOR Counsel
· Cavalluzzon, Hayes & Shilton
Barristers & Solicitors
FOR TEE D. Costen
EMPLOYER Counsel
Legal Services Branch
Ministry of Treasury and Economics
HEARING April 17, 1990
July 3, 1990
2
DECISION
The grievor$, Carol Ann Bott and Eric Prosser are
employed as senior auditors at the sales Tax Branch of the
Ministry of Revenue and worked out of the Employer's offices
located in downtown Hamilton, Ontario. They have grieved that
the Employer has breached the collective agreement in the
manner it applied articles 22 and 23 with regard to
kilometrage and travel time credits.
The factual background to these grievances is not in
dispute in any material way. The grievors' p~imary function
is to conduct audits of businesses wit~ a view to ensure
compliance with the Retail Sales Tax Act. These audits are
performed at the premises of the business beinq audited.
H~storieally, the grievors attended their office only
infrequently. They went to the work site directly from their
homes and at the end of the day returned home directly. There
is no dispute that the grievors did'this with the full
knowledge and acquiescence of the Employer.
Prior to January 1989, the grievors were paid for
kilometrage and travel time under articles 22 and 23 on the
basis of what is known as the "lesser of" principle, that is,
from home to work site and return or headquarters to work site
and return, whichever was lesser.
3
In July of 1988 the Grievance Settlement Board issued its
decision in Re Havford, 1398/87 (Kates). In essence, the
Board concluded that the "lesser .of" principle was contrary
to the provisions of the. collective agreement. As a result
of the Hayford decision, the Director of the Ministry's
Personnel Services Branch issued a memorandum dated January
11, 1989 to management staff, advising of the Hayford
decision. The memorandum noted inter alia, that the Human
Resources Secretariat had accepted the Grievance Settlement
Board interpretation of the collective agreement as correct,
and instructed that "Accordingly all employees should, from
the date of this memorandum be compensated for all time and
kilometres travelled while on Ministry business". This was
followed by a further memorandum dated February 6, 1989, which.
" "to
set out a number of hypothetical scenarios serve as
guidelines for the administration of kilometre payment and
time accumulation as a result of the Havford decision.
Scenario no:2 under the title "Employee' using personal car"
reads: "Employee is authorized to travel from home directly
to a workplace other than the headquarters and to return home
directly. Entitlement: Full kilometre payment and full time
accumulation."
Following the Havford decision and the issuance of these
memoranda, the Employer reimbursed its employees, including
the grievors, for actual time and kilometrage with no
4
reference to headquarters. However, starting sometime late
in August 1989 the Employer instituted a new procedure, which
it candidly admitted was primarily an attempt to minimize the
financial impact of the Hayford decision.
Mr. John Anderson, Audit Manager for the Western Region
testified that once the Hayford ruling required that employees
had to be paid for actual travel and time when authorized to
travel, he had to review the work assignment procedure with
a view to keeping travel costs within the travel budget. The
policy prior to Hayford was to try to asSign files to auditors
to accommodate the auditors' own convenience as much as
possible .since there was no financial implications for the
Employer because of the "lesser of" principle. However after
Havford, in some cases it made a difference, from the cost
point of view, whether or not an auditor is authorized to
travel direct to the work site. Therefore, Mr. Anderson
analyzed the total travel costs with ~egard to each file
before assigning it to an auditor. Where authorizing direct
travel to a work site had no adverse cost impact, he
authorized such travel. However, where direct travel had a
cost implication he required the employee to report to the
headquarters (Hamilton office) before heading out to the work
site. In other words, whether authorization was to travel
direct from home or to travel from the office depended on
which was less costly to the employer in the particular case.
The grievors testified as to how this .new procedure
affected them. Ms. Bott lived in Cambridge, Ontario,
approximately 50 kilometers from the Hamilton office. After
the Hayford decision and the January 1989 memorandum-she
continued to travel direct between home and work site and was
paid for actual distance, and time. Then in August she was
assigned an audit at a business which was located in Hamilton~
just a few blocks from the office. For the first two days of
the assignment, Ms. Bott travelled to the work site directly
from her home in Cambridge and at the end of the day returned
home directly. She was paid for the distance and time based
on her travel between Cambridge and the work location in
Hamilton. However, on the third day of the audit, August 24,
Mr. Anderson 'instructed Ms. Bott that from that day on until
the end of that job, she was to report to the office at the
start and end ·of the work day. Ms. Bott testified that
normally she conducted her audit during the work hours of the
business being audited. In this case that would have been
9:00 a.m. to 5:00 p.m. However, she arrived at the office at
8:15 a.m. as instructed. We accept her testimony that she
accomplished no productive work at the office between. 8:15 and
9:00 a.m.. In order to comply with Mr. Anderson's direction
6
to report at the office at 4:30 p.m., she had to stop work at
4:00 p.m.. There is no dispute that Ms. Bott claimed payment
for the time between 8:15 to 9:00 a.m. and 4:00 p.m. and 4:30
p.m. as audit time and was paid accordingly. However,
commencing August 24, 1989 to the end of that particular
assignment Ms. Bott was not paid for time and kilometrage for
her travel between Cambridge and return, nor did she get
reimbursed for her parking costs.
Mr. Prosser lived in Hamilton, some 8 klms.' from the
office. He too received payment for actual distance and time
travelled from January 1989. In September 1989 he was
assigned an audit at a business located in Hamilton, just a
kilometre from the office. On the first two days of that
audit he went directly from his home"to the work site and
back, and was paid distance and time on that basis. From the
third day on, Mr. Anderson instructed him to report to the
office at 8:15 a.m. and 4:30 p.m. for'the balance of that
particular audit. He did so. As with Ms. Bott, the evidence
indicates that Mr. Prosser spent the time between 8:15 a.m.
and 9:00 and 4:00 p.m. to 4:30 p.m. at the office without
achieving any productive work. He billed that time as audit
time and was paid accordingly. However, he was also not paid
for time or distance for travel between his home and the
worksite.
7
Mr. Anderson testified as to his rationale for revoking
authorization for the grievors to travel directly between
their homes and work sites on the particular audits. With
regard to Ms. Bott, he testified that he compared the cost to
the Ministry for time credits and kilometrage if Ms. Bott was
authorized to travel direct from her home in Cambridge to the
work site in Hamilton, and the costs associated with the
unproductive time resulting from the requirement that-she
report to the office at the start and end 'of her work day.
He testified that in that particular case "the total economic
sense"' from the Ministry's point of view was to authorize
travel only between the office and the work site. In other
words, Mr. Anderson concluded from his cost analysis that
there will be a monetary saving for the Ministry if direct
travel is not authorized in this particular case. His
comparison was between 1 1/2 hours travel time at ~ 24.00 per
hour PlUS 100 klms. at 24.5 cents per kilometre plus $ 6.00
parking per day versus the wages paid ko Ms. Bott for the~
unproductive time of 1 - 1 1/2 hours. Mr. AndersOn testified
that the payment for travel time was roughly equal to the
payment for the unproductive time, so that the Ministry saved
the amount that would have been paid to Ms. Bott for
kilometrage between ~ambridge and Hamilton and parking.
In the case of Mr. Prosser, Mr. Anderson testified that
the particular audit was a class "A" audit, which required the
8
attendance of a group leader, who lived in Grimsby, Ontario.
Mr. Anderson felt that if he authorized Mr. Prosser to travel
direct, he would also have to do likewise for the group leader
to avoid an allegation of discrimination. He had to authorize
direct travel for both or for neither. From a cost analysis
for the two employees as a te~m, he determined that it would
be less expensive to authorize travel from the headquarters
only. Mr. Anderson conceded that if the group l~ader had not
been involved in that audit, he likely would have authorized
Mr. Prosser to travel direct because the costs would have been
roughly the same either way.
Article 22.1 and 23.1 read as follows:
22.1 If an employee is required to be his own
automobile on the Employer's business the following
rates shall be paid ... (dates and rates omitted)
22.3 Employees shall be credited with all time
spent in travelling outside of working hours when
authorized by the Ministry.
Counsel for the Union made a two pronged attack on the
Employer's action. We see no merit in his first submission
based on article 38. Article 38 spells out the criteria and
procedure for designating headquarters for ambulatory
employees who have no real head-quarters, it has no relevance
in assessing the entitlement of employees such as the
grievors, who have real headquarters. The language in
articles 22.1 and 23.1 is clear. The former applies only when
9
an employee is "required" to use his own automobile on the
Employer's business. The latter only applies for travel
outside work hours that is "authorized by the Ministry". The
result of this language is that under both articles,
entitlement to paymen~ is only for authorized travel.
It is clear that prior to receiving instructions from Mr.
Anderson, the grievors had blanket authorization, if~ not
explicitly at least implicitly, to travel between their homes
and their work sites for all of their audits. It is equally
clear that Mr. Anderson expressly revoked this authorization
and that thereafter the grievors were not authorized to travel
direct for 'the particular audits in question. Since
entitlement under both articles in question is only for
authorized travel, the formal requirements for entitlement are
not present in the case of both grievors.
In the circumstances, the Board must examine the Union's
submission that there has been a .breach of the collective
agreement because the Employer has failed to authorize travel
in a fair and equitable manner. Counsel argues that Mr.
Anderson required the grievors to report to the office at the
start and end of their work day solely as a means of denying
them their negotiated rights under the collective agreement
to travel ~time credits and kilometrage. He points to the
evidence that the scheme devised by Mr. Anderson resulted in
l0
payment of wages to the grievors for up to 1 1/2 hours each
day for reporting to the office. Absolutely nothing was
achieved by the grievors when they reported to the office.
By requiring the grie~or's to report to the office, the
Employer avoided the obligation to pay for travel time and
kilometrage. Counsel submits that Mr. Anderson's scheme in
effect re-institutes indirectly the ."lesser of" principle
which the Board had outlawed in Hayford. Counsel points out
that Mr. Anderson decided the travel authorization for Mr.
Prosser the basis of where another employee lived. Counsel
contends that determining the travel authorization for one
employee on the basis of where another employee lives, cannot
be said to be a fair administration of the collective
agreement. Counsel requests that the Board strike down the
requirement to report to the office as being in breach of the
collective agreement and direct tha~ the grievors be paid for
travel time and kilometrage on the basis of direct travel
between home and work site.
Counsel for the Employer points out that section 18(1)(a)
of the Crown Employees Collective Bargaining Act makes the
right to manage an exclusive function of the Employer. The
righ~ to manage includes the right to direct employees to
report to the office the start and end of the work day.
Counsel contends that there is nothing in article 22 or 23
which fetters this management right since they obligate
11
payment for travel only where that travel was authorized by
the Employer. In the case at hand authorization to travel
direct was expressly revoked by Mr. Anderson, so that no
entitlement was triggered under either article. Counsel
submits that the collective agreement does not impose a duty
to act fairly in authorizing travel. In the alternative, it
is submitted that if there was such a duty, the Employer has
complied with it.
We have already concluded, and the Union did not
seriously dispute, that the grievors did not have the
Ministry's authorization to travel direct, after Mr. Anderson
instructed the grievors to report to the office. Therefore
the issues to be determined are
(a) In authorizing travel by employees, is the Employer
required to act fairly and reasonably as the Union claims?
(b) If there is such an obligation, did the Employer act
fairly and reasonably in the manner it revoked authorization
for direct travel in the particular circumstances here?
The Duty to Act Reasonably
In a decision issued in January 1985 in Re Da Costa,
670/84 (Samuels), this Board had occasion to review the Board ·
jurisDrudence as well as the pertinent decisions of the courts
on the issue. The Board analyzed the decisions of the Ontario
Court of Appeal in Re Metropolitan Toronto Board of
12
Commissioners of Police and Metropolitan Police Association
et a! (1981), 24 D.L.R. (3d) 684 and Re Council of Printing
Industries of Canada and Toronto Printing Pressmen and
Assistants' Union No. 10 et al, (1983) 42 O.R. (2d) 404.
We do not propose to repeat that analysis here. That has
been done succinctly and accurately by the Board in Da Costa.
What is important to note is the conclusion the Board reached '
from all of the case law before it at the time. This is
summarized at page 9:
If management's power to make any particular
decision is fettered in any way, the limitation must
be found in the express language of the collective
agreement or must implicit, in light of the
collective agreement as a whole. There is no
doctrine of fairness or reasonableness independent
of the colleotive agreement itself. The collective
agreement is the bargain made by the parties. They
have defined their relationship. But not all of
that bargain will be expressly set out in the
collective agreement. There may be terms which are
implicit, and which will have to be made explicit
by a court or board of arbitration called upon to
interpret the collective agreement.
That represented the law as of 1985. The Union drew our
attention to a more recent decision of the Ontario Court of
Appeal dated April 10, 1990, in The Municipality of
Metropolitan Toronto and The Canadian Union of Public
EmpIovees, Metropolitan Toronto Civic Employees' Union, Local
~, (unreported). The Court in that case was faced with an
argument by the Union based on a notion of reasonable contract
13
administration. The Union's submissions in supPort of such
a notion was predicated upon a judgement of the Ontario Court
of Appeal in Greenber~ v. Meffert (1985), 18 D.L.R. (4th) 548,
wherein the CoUrt held that, where under an individual
employment contract with a real estate agent the employer was
provided the "sole discretion" to disburse commissions to the
agent, in the event her employment was terminated, that
discretion had to be exercised reasonably, honestly and in
good faith.
The Court in Re MuniciDaIity of Metropolitan Toronto
(supra),~ while noting that the Greenberg case was difficult
to apply in the context of collective bargaining, went on to
state as follows:
Nonetheless, it is true that a collective
agreement is an intricate contract, which attempts
to reflect the outcome of bargaining on a myriad of
issues. It is also true that parties intent on
.reaching a settlement do not always have the time,
the incentive, or the resources to consider the full
implications of each and every phrase. There is,
therefore, a place for some creativity, some
recourse to arbitral principles, and some overall.
notion of reasonableness. See, for example, David
Beatty, "The Role of the Arbitrator: A Liberal
V.ersion" (1984), 34 U.T.L.J. 136. The presence of
an implied principle or term of reasonable contract
administration was also acknowledged by Craig J. in
Wardair, su_~, at pp. 476-77.
It is clear that there is no explicit requirement in
either article 22 or 23 that the Employer act fairly .or
-reasonably in authorizing travel for its employees. The Union
14
did not point to any other provision of the collective
agreement from which such a requirement may be inferred.' Thus
the Union relies on a general duty to administer a collective
agreement fairly as the basis for its argument.
Having carefully reviewed all of the jurisprudence, we
have concluded that the law as analyzed by this Board in D~a
Costa remains unchanged on the basis of the Court of ApPeal
decisions in Re Metropolitan Toronto Board of Commissioners
of Police (supra) and Re Council of Printing Industries of
Canada (supra). As the quoted passage from Da Costa (supra)
notes, the effect of those two court decisions is that a
requirement of fairness or reasonableness must be founded
within the collective agreement, either explicitly, or
implicitly from a reading of the particular provision in the
context of other provisions of the agreement or the collective
agreement as a whole. The Court of Appeal addressed that
issue directly and authoritatively in those two decisions.
In contrast, the court's comment in Re Municipality of
Metropolitan Toronto (supra) that "there i$ a place ... for
some overall notion of reasonableness" is clearly obiter.
Moreover, it is a very general and vague statement. The court
does not elaborate when and to What extent such a
reasonableness requirement may arise. We do not read the
court's comment as authority for a proposition that in all
cases where a collective agreement confers a discretionary
15
power on management that must be exercised fairly and
reasonably.
While there is no authority to support the proposition
that there is an abstract notion that discretionary power in
a collective agreement must in all cases be exercised
reasonably, such an obligation may well be implied from the
context. Arbitrators have strived to find'a requirement from
within the collective agreement, where that appears to be the
intention of the parties. The court's reference in Re
Municipality of Metropolitan Toronto to the existence of a
place for creativity and recourse to arbitral principles is
consistent with this approach. In Re Toronto East General
Hospital (1984) 13 L.A.C. (3d) 400 (Burkett), the arbitrator
stated of the two prior Court of Appeal decisions:
In our view, the two decisions can be read
together as standing for the proposition advanced
by arbitrator Swan; that is, "If, based on the
general law of implied terms in contracts, as the
general law may be adapted to the ~particular case
of collective agreements, the implication arises
that a particular management function must be
exercised in a certain way, then an arbitrator is
bound to make that implication since it arises from
the collective agreement from which the arbitrator
draws his or her jurisdiction and which constitutes
the entire bargain between the parties.
The quotation attributed to arbitrator Swan is from the
latter's award in Re Meadow Park Nursing Home, (1983) 9 L.A.C.
(3d) 137 (Swan). In that case the learned arbitrator reviewed
16
the case law on the issue of an implied duty to apply a
provision of a collective agreement fairly. Following an
analysis of the Court of Appeal decisions on the issue, the
arbitrator concludes that where a provision of a collective
agreement confers a discretion on the employer, an arbitration
board should examine the whole collective agreement to
determine what, if any, limits have been put upon the exercise
of that discretion.
'Upon careful review, we have concluded that authorization
of travel for purposes of article 22 and 23 is closely
analogous to the Employer's right to authorize overtime under
article 13. It has been held that article 13 does not include
any discretion in the distribution of overtime, but merely
provides for overtime pay once overtime is awarded and
performed. (Re Carter et al, 2291/86 (Knopf). It has
accordingly been held that, in the absence of an expressly
conferred discretion in distributing ogertime, no duty of
fairness can be inferred. In Re Aubin, 1044/75 (Gandz) the
Board stated as follows:
The collective agreement is completely silent on the
question of the allocation of overtime and to
suggest that there is an implied commitment to
distribute it fairly and equitably would be to
substantially amend the agreement and this is
-clearly beyond the jurisdiction of this Board. In
this, we follow the Board's established
jurisprudence ~as reflected in Chan~oor.
That reasoning applies equally to the issue of travel
authorization~. The collective agreement is completely silent
on the question of authorization of travel. All it says is
that where travel .is "'required" (art.22) or "authorized"
(art.23) certain entitlements arise. This Board's
jurisdiction'stems solely from the Crown EmDlovees Collective
Bargainina Act and the collective agreement. (Re Haladav,
94/78 (Swan). To hold that there is an obligation to ~act
fairly and reasonably in authorizing travel for the purposes
of artiCle 22 and 23 would be to exceed our jurisdiction and
to tread on a course of adding to the collective agreement,
which we are not authorized to do. Accordingly, we conclude
that the Employer has no contractual obligation to act fairly
and reasonably in authorizing travel for the grievors.
Therefore the grievances fail.
!
In view of that result we are not required to address the
issue of whether in fact the Employer acted reasonably in the
manner it authorized travel for the grievors. Nevertheless,
we feel obliged to comment on the argument by Union counsel
to the effect that the Employer was "loop-holing" to continue
with the "lesser of" principle despite the fact that the Board
in Havford held that it had no right to apply such a
principle. There is no doubt that the requirement to report
to the office was imposed by the Employer as a direct reaction
to the Havford decision. The Employer candidly admitted that
18
it was an attempt to cut down on the travel costs which
otherwise would have been payable as a result of the Hayford
decision. That may be called "loopholing" to that extent.
However, we disagree that the effect is to continue the
"lesser of" principle and ignore the Hayfor~ decision. The
Hayford decision presupposes that the travel for which a claim
is made is authorized by the Employer. It holds that when
authorized travel is undertaken by an'employee, he or she is
entitled to be paid on the basis of actual distance and time.
Havford does not deal with in any way the question of when or
how the Employer may or may not authorize travel. When seen
in isolation, it may seem somewhat disturbing and offensive
to common sense that an Employer has instituted a scheme,
which to its knowledge creates a situation where employees
become entitled to wages for time that. is essentially wasted.
However, that is a judgement the EmplOyer has made as a means
of keeping travel costs down. Whether or not this Board
agrees that such a scheme is really cost efficient or
reasonable, that is a management decision the Employer makes
with no fetter under the collective agreement. For the
reasons we have given, we have no authority to review that
decision making.
Similarly, we cannot accept the Union counsel's argument
that the Employer's action results in denying to the grievors,
negotiated entitlements under the collective agreement. As
19
we have alraady pointed out, the entitlement under the
collective agreement is to be paid for .travel once it is
authorized. There is no right under the collective agreement
;
for travel to be authorized. We cannot help but again draw
'the analogy between this situation and the overtime issue.
The collective agreement creates anentitlement to payment for
overtime once assigned but does not give employees any right
to be assigned overtime. Therefore, if the Employer refuses
to authorize overtime it cannot be alleged that the
entitlement to overtime pay under article 13 has been denied.
For all of the above reasons, these grievances are
dismissed.
Dated this 14th day of :Juue 1991 at' Hamilton, Ontario
N. V. Dis s anayake
vi ce- Chairperson
'"I Dissent" (without written reason)
F. Taylor
Member
Member