HomeMy WebLinkAboutDottridge/Union 17-06-09
IN THE MATTER OF AN ARBITRATION
Pursuant to the Ontario Labour Relations Act, 1997
Between:
ONTARIO COLLEGE OF TRADES
(the Employer or the College)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 503
(the Union)
Re: Time Credits While Travelling
Union Grievance 2016-0503-0017
Grievance of Yacine Dottridge 2016-0503-0011
A W A R D
PAULA KNOPF - ARBITRATOR
Appearances
For the Employer: Landon Young, Counsel
Amanda Boyce, Counsel
Lolita Holden, Director of Human Resources
Andreia Esteves, Human Resources Business Partner
Naomi Thornton, Human Resources Business Partner
Tyler Charlebois, Manager, Marketing
For the Union: Jesse Isaac Gutman, Counsel
Adam Burns, President Local 503
Allison Kabayama, Grievance Officer
Vanessa Dunne, OPSEU
Yacine Dottridge, Grievor
The hearing of this matter was held in Toronto on May 30, 2017.
1
The parties‟ Collective Agreement provides credit for time spent in
travelling for the College outside of working hours, except for the time
between 11:00 p.m. and the employee‟s regular start time. The parties
disagree about whether any credit is available between the time the
employee arrives at the desired location and 11:00 p.m. This Award covers
the individual grievance of one person who travels regularly out of town to
perform duties on behalf of the College, as well as a Policy Grievance filed
by the Union.
The operative language is as follows:
18.10 Time Credits While Travelling
18.10.1 Employees shall be credited with all time spent in
travelling outside of working hours when authorized by
the Employer.
18.10.2 When travel is by public carrier, except municipally
operated transit systems, 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
carrier at the destination.
18.10.3 When travel is by automobile and the employee travels
directly from his or her home or place of employment,
time will be credited from the assigned hour of
departure until he or she reaches his or her destination
and from the assigned hour of departure from the
destination until he or she reaches his or her home or
place of employment.
18.10.4 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.
18.10.5 When an employee is required to travel on his or her
regular day off or a holiday listed in Article 19
2
(Holidays), he or she shall be credited with a minimum
of four (4) hours.
18.10 All travelling time shall be paid at the employee‟s basic
hourly rate or, where mutually agreed, by compensating
leave.
To the parties‟ credit, the case was presented primarily on the basis of the
following agreed Statement of Facts:
1. Yacine Dottridge, (the “Grievor”), works as a Stakeholders Relations
Coordinator in the Communications and Marketing Department of the
Ontario College of Trades (the “Employer” or the “Co llege”) at 655 Bay
Street in Toronto, Ontario. His date of service is September 3, 2013.
2. The instant individual grievance of the Grievor was filed May 18 2016
(2016-0503-0011) and alleges breaches of articles 18.10.1 and 2.1 of the
Collective Agreement. The Grievor seeks to be made whole by having
68.5 hours credited to his Lieu Bank (as defined below) and to be
compensated for mental distress in the amount of $10,000.
3. The Union filed a Policy grievance (2016-0503-0017) on the same subject
matter on December 8, 2016. It cites a violation of the interpretation of
18.10.1 in conjunction with 18.10.4. The Union seeks declaratory relief
with respect to this matter.
4. The issue raised by these grievances is whether under Article 18.10 of the
collective agreement an employee should receive credit for time spent
outside of regular working hours and after arriving at a destination where
the employee will be performing work, but is not actually performing work.
5. The Employer‟s position is that no breach of the collect ive agreement has
occurred because the collective agreement only provides employees with
credit for time spent travelling. Time spent by an employee after travelling
to or from a destination is not credited under the collective agreement.
6. The specific issue raised in these grievances was not addressed or
discussed in bargaining. Neither party is asserting an estoppel in this
matter or that past practice provides an aid to interpretation of the
collective agreement.
3
Facts
7. The Grievor‟s duties include coordination and organization of events and
involves travel and sometimes lodging outside of the City of Toronto. The
Grievor is involved with coordinating the staffing of these events and
usually has more than a few weeks notice when he will be required to
travel. However, on occasion the requests for travel are made on short
notice. Overnight travel is infrequent.
8. The Employer‟s practice is to compensate employees for time spent
travelling outside of working hours by crediting employees with that time to
a bank from which employees may later take time off with pay in lieu of the
travel time (the “Lieu Bank”).
9. Until March 2016, the Grievor reported his hours worked outside of the
office and travel time by email directly to Tyler Charlebois, the Grievor‟s
direct Manager. These hours were tracked informally in emails because
the Employer‟s payroll management system was unable to track lieu time
hours. No official database or spreadsheet was created that tracked these
hours.
10. Attached as Exhibit 1 are emails from the Grievor to Mr. Charlebois dated
September 25, 2014, October 3, 2014, November 28, 2014, February 24,
2015, April 23, 2015, October 22, 2015 and November 2, 2015 where the
Grievor reported his travel time.
11. Mr. Charlebois accepted the time reported by the Grievor above his
regularly scheduled 36.25 hours per week and credited the Grievor‟s Lieu
Bank for these hours unless otherwise discussed.
12. Mr. Charlebois maintains he was not aware that the Grievor was
submitting for credit hours non-working hours that were not spent actually
travelling to or from a destination, but spent at a destination after worki ng
hours and did not ask for a breakdown of hours between time actually
spent travelling to or from a destination compared to hours spent at a
destination on non-working time. As a result, the Grievor may have
received credit to his Lieu Bank for some non -working hours spent at a
destination for time spent eating meals or at his hotel room. However, it
was not the intention of Mr. Charlebois or the Employer that the Grievor
would receive credit for non-working hours at a destination that did not
involve actually travelling to or from a destination.
13. In March 2016, the Grievor began reporting to a new supervisor, Perry
Chao. At or around this time, the Employer instituted a new payroll
tracking system, “Ceridian”, that was supposed to be able to track travel
and overtime hours. However, during the initial period, any hours differing
4
from the scheduled 36.25 were to be inputted into Ceridian by a
representative of the Human Resources department, in this case, Andreia
Esteves, Human Resources Business Partner.
14. The period of April and May of 2016 was one of heavy travel for the
Grievor. During this period, the Grievor went on several multi-night trips on
behalf of the Employer: first, to London - April 18-20; second, to Ottawa -
April 24-25; third, to Kitchener-Waterloo - May 2-4; and finally, to
Russell/Pembroke - May 9-11.
15. Upon the Grievor‟s return to his home office in Toronto, the Grievor, upon
request, provided a detailed explanation of his hours claims to Mr. Chao
that broke down those hours spent travelling to and from a destination
from non-working hours spent at a destination. See email dated May 26,
2016 from the Grievor to Mr. Chao dated May 26, 2016 attached as
Exhibit 2.
16. The Employer denied those hours claimed by the Grievor that were not
actually spent travelling to and from a destination outside of working
hours, but were for time spent after having arrived at a destination. The
Employer credited the Grievor with twenty-two (22) hours of travel time,
but he was claiming sixty-four (64) hours. The Union alleges the
outstanding balance of hours totals forty-four (44) hours.
17. At this point, the Grievor filed the above -noted individual grievance, and
included the tracked differential of hours per the Employer‟s and Union‟s
interpretations of the Collective Agreement language.
18. Since the submission of the Grievance, the Grievor travelled several more
times for the College, and has each time provided a clearer breakdown of
the hours claimed between time spent travelling to and from a destination
and time spent at a destination either eating or at a hotel. Attached as
Exhibit 3 are copies of emails between the Grievor, Mr. Chao and the HR
Business Partner dated November 3, 7, 8 and 18, 2016.
19. In December 2016, as described above, the Union filed the in stant Policy
grievance with respect to this matter.
20. The Grievor has recently traveled again, this time to Ottawa from May 15 -
18, 2017, which he will add to the total disputed hours. He has submitted
these hours to Mr. Chao. In addition to the forty-four hours at the time of
the grievance, the Grievor seeks twenty-four and a half (24.5) hours in lieu
time for these trips.
5
In addition to these agreed facts, the parties also stipulated that when the Grievor
and other members of the bargaining unit travel for the College, they often bring
materials and equipment with them. Since the Grievor does promotional work for
the College, he often rents a car and brings along marketing brochures,
pamphlets, backdrops, a College laptop, a TV monitor and/or a projector. He
used to bring a College cell phone, but now uses his own instead. Employees are
not expected to respond to emails during travel time or beyond their regular work
hours. However, if there is a specific need for work to be done while an
employee is away from home, the Employer indicated that it would be credited as
“work”, but not as “travel” under Article 18.10.
The Submissions of the Parties
The Submissions of the Union
The Union argued that the time an employee spends after arriving at a
destination and before his/her regular work day begins should be considered
“time spent in travel” and credited as such, except for the hours between 11:00
p.m. and his/her regular starting time. In other words, if a person travels to a
location and arrives at 8:00 p.m., the Union seeks credit for the hours between
8:00 and 11:00 p.m. under Article 18.10.1. The Union stressed that the time an
employee spends away from his/her family is “tough”. Therefore, the parties
negotiated a specific regime under Article 18.10. Acknowledging that such time
is not “work” in the normal sense of the Collective Agreement, it was said that
these hours should be “compensable time” because of the service that is
provided to the Employer resulting in a “fringe benefit” that is usually taken as
lieu time. To support this, the Union argued that Article 18.10.4 must mean that
the hours before 11:00 p.m. have to be compensated, otherwise there would be
no need for the exclusion of hours after 11:00 p.m. The Union asked that the
rules of contract interpretation be applied as set out in Hoover and United
Electrical, Radio & Machine Workers of America, Local 520, (1981) 29 L.A.C.
(2d) 162 (McLaren). The Union made reference to the sentiments about how
6
hard it is to be away from home, evoked by Bruce Springsteen in Working on the
Highway:
Working on the highway laying down the blacktop
Working on the highway all day long I don't stop
Working on the highway blasting through the bedrock
Working on the highway, working on the highway
The Union stressed that this Employer is “sophisticated” and therefore negotiated
Article 18.10 in light of its own By-law covering compensation for its Board of
Governors that provides, “Under no circumstances is remuneration payable for
time spent traveling to and from meetings, hearings or adjudications under this
by-law.” It was argued that if the College wanted to apply that kind of rule to this
bargaining unit, it would have insisted on such language in this Collective
Agreement. It was argued that there is a significant difference between the
words “time spent travelling” in the By-law and “time spent in travelling” in Article
18.10.
The Union acknowledged that there might be an interpretative reluctance to
award compensation for an employee‟s time when s/he is not expected to “work”
or perform duties. Therefore, as an alternative submission, the Union argued
that employees like the Grievor, who have responsibility for the College‟s
materials and equipment when they are travelling, should be deemed to be
“working” and therefore compensated for looking after the safety of the College‟s
property. In support of this, the Union relied on Steinberg Inc., and UFCW, Local
486, (1985) 20 L.A.C. (2d) 289 (Foisy); Mitchnick and Etherington, Labour
Arbitration in Canada (2nd) Toronto, Lancaster House, Chapt. 23.1.3; Brown and
Beatty Canadian Labour Arbitration, Carswell, Chapt. 8:3700; Professional
Engineers and Architects of the Ontario Public Service v. Ontario (Ministry of
Transportation) (re Time Credits), [2001] O.G.S.B.A. No. 34 (Briggs).
Further, or in the alternative, the Union submitted that the term “in travelling” is
an “open-ended” concept indicating that the journey continues until the
7
destination is reached. The Union suggested that the “destination” is the
beginning of the next work day. The Union relied on Black‟s Law Dictionary
definition of the word “in”, as well as the following case law that defines the
concept of travel: Wigton v. Ratke, Alberta Court of Queen‟s Bench, 1984-05-04.
Therefore, it was said that an employee spends “in travelling” for the College‟s
business from the time the journey begins until his/her regular start time and
should, therefore, be credited for all the hours except those specifically exempted
under Article 18.10.4.
For its Policy Grievance, the Union sought a declaration upholding its
interpretation of Article 18.10. On the individual grievance, the Union asked that
the Grievor be made whole for the hours claimed. The parties agreed that I
should remain seized with regard to the computation if the grievance succeeds.
The Submissions of the Employer
The Employer argued that the Collective Agreement only offers credit for time
when an employee is engaged in the physical act of movement from one place to
another on behalf of the College. This interpretation was said to have been
upheld and decided in favour of the Employer on virtually identical language in
the 1984 decision of Arbitrator Jack Roberts in OPSEU (Christopher Pool) and
Crown in right of Ontario (Ministry of Correctional Services), Grievance
Settlement Board #596/83 [the Pool Decision], and affirmed in Ontario (Ministry
of Community and Correctional Services), (2005 CarswellOnt 11320, 83 C.L.A.S.
148 (Nairn)). Pointing out that this language has been in place since travel to
northern parts of Ontario was commonly done by rail, it was suggested that
Article 18.10.4 was drafted to address time spent in sleeping quarters on
overnight trains. This was said to be consistent with the former Regulation 977,
S.10.17.7, under the Public Service Act, Part II (repealed 2007) that provided: “. .
. if the employee‟s means of travel includes sleeping accommodation for him or
her, the employee is not entitled to compensation for his or her travel time
8
between 11 p.m. and time he or she regularly begins work.” It was suggested
that this Regulation was the basis of the parties‟ contract and the interpretation
that the Employer favours. Therefore, it was submitted that Article 18.10.4 only
makes sense as a whole if it is interpreted and applied to exempt the Employer
from having to give credit for time in sleeping accommodations provided while in
the course of physically moving from one place to the next or engaged in the
physical journey or travel.
However, the College conceded that if an employee is travelling on behalf of the
Employer and is delayed on the journey beyond 11:00 p.m., Article 18.10.4
would not be invoked to shield the Employer from having to give credit for time
spent “in travelling.” Therefore, Article 18.10.4 only exempts the Employer from
having to credit “time spent in travelling” when the travelling occurs while in the
sleeping accommodation that has been provided.
The Employer did not disagree with the Union‟s sentiments about the hardships
of travel away from home on behalf of the College. However, it was submitted
that the Union‟s argument is effectively a demand to be paid for not working.
Counsel made reference to Tom Cochrane‟s “Life is a Highway”, suggesting that
that the Union is trying to “ride the highway all night long”:
Life is a highway
I want to ride it all night long
If you're going my way
I want to drive it all night long
On a more serious note (forgive the pun!), the Employer submitted that the
Union has not met its onus of showing clear language that confers a
financial benefit or compensation for time that is not spent working.
Reliance was placed on Central Transportation B.C. Inc. v. C.U.P.E., Local
56, 1997 CarswellBC 3206, 62 L.A.C. (4th) 230 (Devine); Toronto District
School Board and C.U.P.E, Local 4400, 2016 CarswellOnt 18814.
9
In response to the Union‟s alternative submission regarding the
employee‟s responsibilities for College materials and equipment while
travelling, the Employer submitted that the Agreed Facts do not support a
finding that employees are instructed to do anything with or for these
things during non-working hours. It was also stressed that the
Agreed Facts indicate that employees are not expected to work or respond
to emails after their regular working hours, even when they are at another
location. It was said that the employees are free to leave their hotels after
they arrive and have no responsibly to personally “guard” the College‟s
property. Therefore, it was said that the evidence does not support the
proposition that the Grievor or similar employees “work” after they arrive at
their destinations. However, it was acknowledged that if work was
required or instructed to be done after regular working hours, it should be
paid as “work”, but not as “time credits while travelling”.
The Union’s Reply
Counsel for the Union quipped that employees should receive
compensation if they „ride the highway all night long‟ on behalf of the
Employer. The Union also stressed that employees do the Employer a
favour and save it money when they transport materials and equipment to
and from destinations in their own or rented cars. Again this was said to
be “work” on behalf of the College that warrants compensation.
10
The Decision
HOME AGAIN
Home again I've been too long upon my way this way don't pay
Home again too many names I can't recall it's coming home
Well I've done everything I thought I wanted to do
When each step I took took me far away from you
I'm going home
I'm going home
(Sung by Glen Campbell. Written by Carole King.)
Arbitrators know the travails of travel for work. We often travel at night to
be available for an out-of-town hearing the next day. We travel by air, by
rail and in our own automobiles, often after a full day of work. It is then
lonely to be in a hotel room away from home and family. It is often
uncomfortable. It always makes the next day‟s work harder. That is why
many arbitrators bill for travel time in addition to their professional fees for
the hearing day. Therefore, it is easy to by sympathetic to these
grievances.
Since counsel for the parties provided song lyrics to support each of their
submissions, it seems appropriate to rely on the lyrics of Van Morrison to
sum up the burden of being away from one‟s home:
The Meaning of Loneliness
Lost in a strange city
Nowhere to turn
Far cry from the streets that I came from
It can get lonely
When you're travelling hard
Travelling for work can be “hard.” It is, as the Union submits, “tough.”
Nevertheless, arbitrators also know that their sympathies cannot determine
11
outcomes of cases. Our responsibility is to interpret and apply the bargain
that the parties crafted for themselves in their collective agreement.
Therefore, this decision is based only on the agreed facts of this case and
the language of the parties‟ Collective Agreement.
In fairness to the parties, the language is not the clearest. Had they
adopted the wording of the College‟s By-law or the previous Regulations,
this case would be much easier to resolve. But we do have the benefit of
the Pool Decision. It was based on the same substantive language as is
found in this Collective Agreement. The Pool Decision warrants being
quoted extensively:
... the word “travelling” solely refers to the act of physically
moving from one place to another on government business. This
conclusion resolves the grievance against the position of the
grievor.
. . .
... The entire focus ... appears to be upon the physical act of
movement from home to destination, and vice-versa. For
example, s. 23.2 [read 18.10.2] deals with the method of
calculating time credits when the physical movement of the
employee is accomplished by public carrier. Article 23.3 [read
18.10.3] provides a different method of calculation of time credits
where the employee uses an automobile to move from, e.g., his
or her home to the destination. Section 23.4 [read 18.10.4]
relieves the Ministry of its obligation to pay time credits where the
physical movement of the employee occurs, in whole or in part,
in the period of time extending from 11:00 p.m. to the employee‟s
regular start time, so long as sleeping accommodation for the
night in question is provided -- presumably on the means of
transportation, e.g., a ship or train, or at the destination, e.g., a
hotel. ...
There does not appear to be any significant reason to
anticipate that the parties might have intended Article 23 [read
18.10] to have any broader focus than this. ...
12
The Pool Decision also addressed the argument that employees ought to
be compensated for the “inconvenience” of being away from home at the
“behest” of the employer during their otherwise spare time. However,
Arbitrator Roberts pointed out that except for not being able to return to
their homes, employees are free to do anything they want once they arrive
at a destination and before their working day starts:
It does not seem to us ... that the parties contemplated
that the inconvenience to an employee of being away from
home would warrant being paid his or her regular rate during
his or her free time.
This was characterized as time that is “incidental to work” and not as
something that is compensable under the language that was operative in
that case or that is operative in the case at hand. There is nothing in the
Pool Decision that seems unreasonable or incorrect. I have no hesitation
in accepting its analysis and conclusions.
However, in fairness to the Union, I will also address its submissions that
were not canvassed in the Pool Decision. The Union‟s strongest argument
was that for Article 18.10.4 to have any effect, it should be read to create
an entitlement to credit for all the hours the employee is required to travel
up until 11:00 p.m. That might have made some conceptual sense, but for
the actual wording of Article 18.10 as a whole. The Article credits
employees “while travelling” with “time spent in travelling”. „In travelling‟ or
„while travelling‟ does not equate with “away from one‟s home”. As Wigton
v. Ratke, supra, points out, „travelling‟ is defined as “in the process of
arriving” or “going from one place to another” or “passing between the
terminal points of the journey” (para 6). In other words, travel is an active
13
process of physically moving from one place to another. “In travel” or
“while travelling” does not include the time after arrival. The Union
stressed that „travelling‟ or „in travel‟ includes the time it takes to get to a
destination. One has to agree with that. However, the Union also
contended that the “destination” is the time when the next regular working
day commences. That proposition is inconsistent with the case law cited
and is unsupportable by this Collective Agreement. Article 18 itself makes
a clear distinction between reaching a destination and one‟s regular start
time. The principles of contractual interpretation demand that words
should be given their ordinary meaning and that the contract should be
read as a whole. It is impossible to interpret “destination” as meaning the
start of one‟s regular work day.
Further, arbitrators have consistently interpreted and applied collective
agreements in accord with the principle that there must be “clear, specific
and unequivocal” language to support a claim for compensation. A
monetary benefit cannot be simply inferred. There is an onus to establish
the clear basis for a monetary claim. See Central Transportation B.C. Inc.,
supra, at para. 25. Article 18.10.1 confers clear benefits to employees for
time spent “while travelling” and “in travel”. It confers no clear benefit for
time spent after arrival at a destination while no work is expected to be
done.
Article 18.10.4 still has a purpose and an effect. The Employer
acknowledged and confirmed that if an employee is in the process of
arriving at a destination after 11:00 p.m. or before their regular starting
time and remains engaged in the physical act of travelling, they shall
receive credit unless the time covered by Article 18.10.4 is spent sleeping
in accommodation provided by the Employer. So if an employee is
14
travelling overnight in a train, plane or boat that provides sleeping
accommodation, they will receive credit for the time up to 11:00 p.m. and
not thereafter until their next regular start time. However, if they are on
route and do not reach their destination before 11:00 p.m., they will be
compensated for “travelling” until they arrive at their destination, even
when the Employer provides accommodation. This is all consistent with
the Pool Decision and the notion that “travelling” is the physical movement
of getting from one place to another. It also aligns with a reading of Article
18.10 as a whole and its references to reaching a “destination”, indicating
that “travelling” ends once the destination is reached.
Turning to the Union‟s argument that the time spent away from home is a
hardship that should be compensable, the Collective Agreement does not
support this concept. However, the Employer reiterated that employees
will be paid if they are directed to perform work after regular working hours
while they are away from home. Therefore, if an employee is expected to
respond to emails, work on a computer, complete an assignment or do any
other assigned work „after hours‟, the Collective Agreement provides other
means of compensation, for example, as overtime or other premiums. The
fact that an employee transports equipment and materials for the College
does not necessarily mean that the employee is required to “work” while
s/he has possession of that property. This was dealt with in Professional
Engineers and Architects of the Ontario Public Service v. Ontario (Ministry of
Transportation) (re Time Credits), supra. The relevant part of that decision
probed the issue of when one is at “work” during a period of travel when there is
a continuing responsibility for the employer‟s property. It was held that carrying
materials in a personal or employer‟s vehicle “cannot magically change travel to
work,” [para. 43]. Admittedly, different contractual language was at stake in that
case. However, the facts in the case at hand reveal no significant responsibilities
15
or duties with respect to the Employer‟s materials after employees arrive at a
destination. If the facts had disclosed that the transportation of materials also
required significant time in loading, unloading or setting up displays after regular
hours, that might have supported a claim for compensation. However, that would
not be “time spent in travelling”; it would be “work” under another heading and
therefore outside of the scope of this grievance.
For all these reasons, the grievances are dismissed. However, I am compelled
to conclude with another “note” about travel from Leonard Cohen:
Going Home
Going home
Without the sorrow
Going home
Sometime tomorrow
Going home
To where it‟s better
Than before
- Leonard Cohen
Dated at Toronto this 9th day of June, 2017
_______________________________
Paula Knopf, Arbitrator
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