HomeMy WebLinkAbout1997-1539.Nickel.00-08-22 Decision
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GSB #1539/97
OPSEU#97G052
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Nickel)
Grievor
- and -
The Crown in Right of Ontario
(Ontario Clean Water Agency)
Employer
BEFORE Michael V Watters Vice Chair
FOR THE Ed Holmes, Counsel
GRIEVOR Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE Marsha Gottesman, Counsel
EMPLOYER Legal Services Branch
Ministry of Community and Social Services
HEARING October 28, 1998, April 30, 1999,
January 31, February 8, February 16, July 17, 2000
2
This proceeding arlses from the grlevances of Mr Brian Nickel
and Mr Michel Caron dated June 5, 1997 and January 19, 1998,
respectively The former grlevance states, in part
"On May 28, 1997 I was told by management to report to a
new work location I believe this constitutes a change
of headquarters, and this change was not In compliance
with Article 11
"
(Exhibit #1 )
The latter grlevance states, in part
"I hereby grieve a directive made by 0 C W A to effectively
change my legal headquarters without adhering to the
procedures of Article 11 and its sub-sections outlined In
the collective agreements between 0 P S E U and the
Province of Ontario
"
Exhibit #2)
As noted, both of the grlevances reference article 11 of the
collective agreement That provlslon, as set out below, applies to
"employees who do not attend at or work at or work from any permanent
ministry facility In the course of their duties " The parties to
this dispute agree that article 11 lS inapplicable to the grlevors as
both attend at or work at or work from a permanent OCWA facility,
this being the Kingston Township Wastewater Plant This location was
also referred to as the Kingston Sewage Treatment Plant during the
course of the evidence I will hereafter refer to this work site as
"the KSTP" I accept the submission of counsel for the Union that
the real lssue In this case lS what, if any, benefits accrue to an
3
employee when the Employer directs them to report to a workplace
other than their regular place of employment
The grlevors at all material times worked as Operators In the
Kingston Township Hub of the Ontario Clean Water Agency (hereinafter
referred to as OCWA) The purpose of their position lS described as
follows In the Specification and Class Allocation form filed as
Exhibit #9
"to maintain and operate all process control, systems and
other related equipment required In the operation of the
water and wastewater facilities, the related pumping
stations, collection and distribution systems located
within the Kingston Township Hub "
The Kingston Township Hub consists of a number of projects including
water and wastewater facilities In Kingston, Odessa and Lansdowne
The aforementioned Hub was amalgamated with the Belleville area Hub
In or about December, 1998 to form the Kingston-Quinte Hub This
development does not impact the resolution of these grlevances
Mr Nickel was hired into the Operator position effective
November 30, 1987 Mr Caron transferred into his position on April
15, 1991 His seniority date lS June 26, 1989, as he previously
worked as an Operator In Longlac, Ontario At the time of their
hire, both grlevors were informed that their permanent worksite or
"headquarters" would be the KSTP When they commenced their
employment, the water and wastewater facilities and related systems
In Kingston and the immediate area were operated by the Ministry of
the Environment In or about November, 1993, responsibility for the
4
operation of these facilities was transferred to OCWA Initially,
each facility had a Superintendent and operational and clerical
staff In July, 1996, OCWA restructured its operations around the
hub system Generally speaking, thereafter the cluster of facilities
comprising the Kingston Township Hub were serviced by OCWA employees
working out of Kingston rather than by employees positioned at each
of the separate facilities Positions at the individual facilities
were eliminated and staff who previously worked there were reduced or
surplused The staff remalnlng were all considered to have
headquarters at the KSTP A rotational system, as described In
greater detail later In this award, was adopted by the Employer
pursuant to which employees were assigned to the varlOUS projects In
the Hub In the period material to this case, Mr Jeff DeMarsh was
the Manager of the Kingston Township Hub and Mr Joe Lewis was the
Assistant Manager Mr Lewis was the grievors' direct superVlsor
Mr Nickel lives In Morven, Ontario Morven lS In close
proximity to Napanee and lS approximately thirty-five (35) kilometres
to the west of the KSTP Mr Caron lives in Kingston His residence
lS approximately nlne (9 ) kilometres from the KSTP As mentioned
earlier, Odessa and Lansdowne are part of the Kingston Township Hub
Odessa lS approximately fourteen (14 ) kilometres to the east of Mr
Nickel's residence and lS the same distance to the west of Mr
Caron's residence Mr Nickel, if using Highway #401, would pass by
Odessa when travelling from his home to work in Kingston Lansdowne
5
lS approximately eighty (80) kilometres northeast of Kingston
The workday for both grlevors commences at 7 30 a m and
concludes at 4 00 P m In the period prior to the events glvlng rlse
to these grlevances, Mr Nickel commuted on a daily basis from his
residence to the KSTP, and return, uSlng his personal automobile
Between 1987 and 1993, he travelled alone and went directly to the
KSTP for the start of the workday Commencing In late 1994, his wife
started to travel with him as she also worked In Kingston It was
Mr Nickel's practice to first drop his wife off at her job at
Kingston General Hospital before reporting to the KSTP at 7 30 a m
Mr Caron, likewise, commuted from his home to work uSlng his
personal automobile He estimated that the commute took between ten
(10 ) and thirteen (13 ) minutes Mr Caron testified that he also
carpooled to work for a period of time and that, on occaSlon, he
biked to the KSTP In this period, neither grlevor was paid for the
commute More specifically, they were not compensated for the
kilometres travelled between their residence and work, and return,
nor were they paid for the time spent travelling to and from the
KSTP Mr Nickel acknowledged that during his commute, he did not
conduct any business for the Employer
In this initial period, prlor to the events glvlng rlse to the
present dispute, the prlmary work location for both Mr Nickel and
Mr Caron was the KSTP During the course of their day, they were
periodically required to perform work at the other projects In the
6
Hub, as the need arose By way of example, they might have to attend
at the Kingston Township Water Treatment Plant, some three (3 )
kilometres away, or at facilities at or close to either Odessa or
Lansdowne The grlevors were provided with an OCWA vehicle
(hereinafter referred to as a "company vehicle") for "ad hoc" trips
of this nature Mileage and travel time were not claimed in respect
of such trips as the work in question was performed within the normal
workday and through the use of a company vehicle Mr Nickel and Mr
Caron were also required from time to time to be on-call in order to
respond to problems or emergencles at any of the facilities within
the Kingston Township Hub occurrlng between 4 00 P m and 7 30 a m
or on weekends The grlevors had access to a company vehicle when
acting on-call Mr Nickel and Mr Caron also described certain
secondments they were on In the 1995-1996 period It lS unnecessary
to reVlew these In detail for purposes of this award
In late January, 1997, Mr Lewis informed Mr Nickel that he was
required to work at Odessa commenclng February 1, 1997 In the
period February 1 to May 27, 1997, Mr Nickel commuted with his wife
and young child/children to Kingston via their personal automobile
I was informed that the child care was provided In Kingston Once
there, Mr Nickel dropped his family off and then proceeded to the
KSTP for the start of work at 7 30 a m This grievor would then take
a company vehicle and drive to the facility at Odessa At the end of
the day, he would leave Odessa In the company vehicle and return to
7
the KSTP for 4 00 P m Thereafter, he would pick up his family and
return to Morven In his personal vehicle During this period, Mr
Nickel was not compensated for travel between the KSTP and Odessa,
and return, as throughout all such travel was In a company vehicle
and occurred within regular working hours
At some point following this reassignment, Mr Nickel approached
Mr Lewis and advised him that his wife would only be working three
(3 ) days a week up until the end of April, 1997 As a consequence,
Mr Nickel offered to report directly to Odessa at 7 30 a m on the
two (2 ) days he did not have to drive her to Kingston The grlevor
emphasized that this would be a temporary arrangement only as his
wife's job would revert to full-time at the end of April It appears
from the evidence that Mr Lewis ultimately agreed to the proposal
after considering same for an unspecified period of time
Mr Nickel testified that on May 27, 1997, Mr Lewis instructed
him to report directly to Odessa commenclng the following day
Instead of reporting to the KSTP at 7 30 a m and taking a company
vehicle for the drive to Odessa, Mr Nickel was expected to report
directly to Odessa for the start of work at 7 30 a m and to remaln
there until 4 00 P m It was further expected that travel from his
residence to Odessa, and return, would be by way of his personal
vehicle
Mr Nickel asserted that the direction of May 27th inconvenienced
him as he had structured his personal life around his headquarters
8
As previously mentioned, Mr Nickel's spouse also worked In Kingston
and his child care arrangements were located in that same community
Following receipt of Mr Lewis' direction, the grlevor was required
to leave home fifteen (15 ) minutes earlier in the morning so that he
could drop his wife and child/children off In Kingston and then
report to Odessa for 7 30 a m At the end of the workday at 4 00
P m , Mr Nickel left Odessa In his own vehicle and returned to
Kingston to collect his family He estimated that the new routine
increased travel in his personal vehicle by approximately forty (40 )
kilometres per day in comparison to the earlier period when a company
vehicle was used for travel from the KSTP to Odessa and return Mr
Nickel added that the extra time spent travelling at the end of the
day resulted In his child/children spending greater time at the
babysitters He claimed that it was not feasible for his wife to
drop him off at Odessa In the morning on her way to Kingston This
was premised on the fact that she worked till 5 00 P m Mr Nickel
suggested that, as a consequence, he would have been "stranded
without a vehicle" at Odessa for one and one-half (1 1/2) hours while
he waited for his wife to pick him up after work Additionally, he
noted that such an arrangement would have augmented the time his
child/children spent in day care Mr Nickel stated that this change
"became an issue" when it started to cost him money and disrupt his
personal life
Mr Nickel testified that he raised the above concerns, including
9
those related to child care, with Mr Lewis In his words, they
failed to arrlve at a satisfactory resolution He, accordingly,
filed his grlevance on June 5, 1997
Mr Nickel travelled in accordance with the directive between May
27th and the end of December, 1997 He did not claim or recelve an
allowance for kilometres or time travelled Mr Nickel maintained
that management personnel told him he could be sent "anywhere within
forty (40) kilometres" without any consequent obligation to provide
compensation He further indicated that his headquarters remained in
Kingston throughout the entire eleven (11 ) month period during which
he reported to Odessa
Mr Lewis testified that he viewed the initial arrangement for
the grievor's travel to and from Odessa, In respect of the period
February 1 to May 27, 1997, as inefficient in terms of both economics
and productivity He expressed concern that approximately one (1 )
hour of the work day was lost to travel and that there was one (1 )
less vehicle at Kingston available for ad hoc trips In his
judgment, these inefficiencies were eliminated by having the grlevor
report directly to Odessa He noted, as well, that such change would
decrease the expenditure on fuel for OCWA vehicles Mr Lewis
observed that a direct report to Odessa would also reduce Mr
Nickel's personal commute from thirty-five (35 ) kilometres to
fourteen (14 ) kilometres each way Similarly, it would serve to
lessen the actual time spent travelling to and from work
10
Mr Lewis advised that he elected to implement the above-
described change after consulting with Mr DeMarsh and Ms Anne
Thorton, the Human Resources Advisor for the Northern and Eastern
areas of OCWA Mr Lewis acknowledged that he did not ask the
grlevor about his preference or interests He indicated that at the
time the decision was taken, he was unaware of the grievor's personal
arrangements In respect of the transport of his family to Kingston
Mr Lewis stated that he became aware of these arrangements prlor to
the grlevance being filed It was his evidence that the information
did not persuade him to reconsider the decision From Mr Lewis'
perspective, it was Mr Nickel's "choice to take his kids to
Kingston" He expressed the further oplnlon that he had to be fair
and equitable to all employees
Ms Thornton In her evidence did not seek to mlnlmlze the
importance of child care or the effect that arrangements for same can
have on the balance and equilibrium of staff In this regard,
reference was made to "Working Well", an Employee Assistance Program
initiated In late 1999 which assists employees on a confidential
basis with several problem areas, including child care A package
describing the program was filed as exhibit #18 Nonetheless, Ms
Thornton testified that she does not consider it the Employer's
responsibility to accommodate for child care situations, particularly
In Vlew of the fact the location where the care lS provided could
change, possibly on short notice
11
Mr Caron replaced Mr Nickel at Odessa In early February, 1998
and remained there until May, 1999 During this period, Mr Caron
was required to travel In his own vehicle from his residence to
Odessa for the start of the workday at 7 30 a m He stayed there
until 4 00 P m at which time he would return home, agaln, by way of
his personal transportation It lS apparent on the evidence that
this assignment added five (5 ) kilometres to Mr Caron's commute to
work and an equal number on the return trip home Mr Caron
estimated that it took him between seventeen (17) and twenty-nine
(29) minutes to drive to Odessa depending on the traffic and the
weather
Mr Caron's primary concern was that the requirement to drive his
personal vehicle to Odessa and back increased his expenses relating
to fuel and maintenance He also noted that having to be at Odessa,
and not Kingston, at 7 30 a m forced him to adjust his daily
schedule When advancing these concerns, Mr Caron stressed that
Odessa was not his "main work area" He stated that his preference
would have been to travel to the KSTP for 7 30 a m , to go from there
to Odessa In a company vehicle, and to return In same to Kingston for
4 00 P m Simply stated, Mr Caron wanted to travel on company time
and In a company vehicle Mr Caron alleged that other employees
were permitted to travel In this fashion and that at least two (2 )
employees were compensated for lunches when working out of Odessa
Mr Caron also made specific mention of a situation which
12
occurred around Easter In 1998 At that time, his car was being
repaired and painted and, as a result, was unavailable for the
commute to Odessa Mr Caron testified that he asked Mr Lewis if he
could use one (1 ) of the vehicles at the KSTP for travel to and from
Odessa for the period his vehicle was out of serVlce It was Mr
Caron's evidence that his request was denied and that Mr Lewis
suggested he use vacation or sick time to cover the days in question
The grlevor ultimately opted to take two (2 ) vacation days He
noted, In this regard, that there was no public transportation
available to travel between Kingston and Odessa Mr Lewis did not
seriously dispute the grievor's account of this incident He
expressed the oplnlon that an employee has the obligation to get to
work at headquarters or at some other location to which they have
been rotated Mr Lewis added that if he had granted the grievor's
request, he would have had to do the same for all other employees
While at Odessa, both Mr Nickel and Mr Caron were called upon
to work at several facilities in the immediate vicinity including the
Odessa Water Treatment Plant, the Amherstview project and the Petro
Canada project Company vehicles were available for these "ad hoc"
trips which were completed within regular working hours I accept
that neither grlevor had to use his personal vehicle for work once at
Odessa
In his examination in-chief, Mr DeMarsh was asked why the
grlevors were not permitted to first report to the KSTP and then
13
travel to Odessa In a company vehicle and on company time He
advanced two (2 ) reasons for the position taken Firstly, Mr
DeMarsh stated that such an arrangement would have led to a loss of
productivity at the beginning and end of the workday In respect of
the time spent travelling to and from Odessa In cross-examination,
he acknowledged that as the Odessa plant was already runnlng at 7 30
a m , there was nothing specific for the grlevors to do there for the
first one-half (1/2) hour of the day In order to make the facility
operational He agreed that the same was true at the end of the day
Mr DeMarsh emphasized, howeve r , that there was "significant work to
be done" within the cluster of facilities around Odessa and that the
demands required "a full eight (8 ) hours attention" Secondly, Mr
DeMarsh suggested that the grievors' preference would have presented
a logistical problem In terms of the deployment and availability of
OCWA vehicles He suggested that on-call staff could be
inconvenienced if a vehicle deployed at Odessa was parked at Kingston
overnight On his analysis, if the vehicle was needed at Odessa to
respond to a problem, the on-call person would have to first retrieve
it from Kingston and then return to Odessa to deal with the
situation Mr DeMarsh indicated that In deciding where the grlevors
should report and on the method of travel they would be required to
use to get there, he considered the impact on them and balanced it
against the needs of all staff
Mr Lewis advised that In the relevant period the deployment of
14
OCWA vehicles was as follows Kingston-three (3 ) to four (4 )
vehicles, Odessa-two (2) vehicles, Lansdowne-one (1 ) vehicle In
cross-examination, he agreed that Slnce there were two (2 ) vehicles
at Odessa, the on-call function would not have been adversely
impacted by the grievors' use of one (1 ) of the vehicles for travel
between headquarters and Odessa, and return He further agreed that
day-time operations would not have been affected as Mr Nickel was
the sole employee at Odessa In the period he was positioned there,
while Mr Caron was one (1 ) of two (2 ) employees there between
February, 1998 and May, 1999 In substance, Mr Lewis acknowledged
that the grievors' use of one (1 ) of the vehicles for travel to and
from Odessa would not have undermined either day-time or after-hours
operations
On the evidence, it seems that employees were periodically
assigned to other projects In the Kingston Township area on a weekly
or monthly basis prlor to the adoption of the Hub structure In 1996
After implementation of the Hub structure, rotation of employees
between the varlOUS projects within the Hub became standard operating
procedure Mr DeMarsh testified that he was directed by Mr Ron
Gagnon, the Eastern Area Vice-President, to rotate operational and
maintenance employees between projects as part of the overall hub
strategy
All of the witnesses presented by the Employer testified as to
the benefits accrulng from the rotation of employees These benefits
15
may be summarized as follows
(i) exposure of staff to the operations of all projects
In the Hub would permit them to provide better
serVlce when responding to problems or emergencles
when on-call Mr Nickel had previously filed a
grlevance relating to an on-call alarm at the
Westport facility Apparently, he was then of the
view that he and other employees had not received
sufficient opportunity to galn experlence or
training In respect of other plants within the
Hub, thus making it more difficult to respond to
alarms In a settlement of the grlevance dated
April 29, 1997, the Employer agreed "to develop a
training plan to address the requirements for
staff on-call In the Kingston Hub" (Exhibit # 4) ,
(ii) exposure to other projects would provide employees
with an opportunity to galn the requisite experlence
to upgrade their certification level, and,
(iii) a multi-skilled and cross-trained workforce would
make OCWA more marketable In a competitive
business environment and would provide greater
opportunities for maintaining existing contracts as
well as securlng new ones
Mr DeMarsh met with staff to discuss the objectives of the
rotational system It was left to Mr Lewis to devise the actual
implementation schedule The deployment of Mr Nickel and Mr Caron
In Odessa was part of this overall plan to rotate employees between
projects for the reasons outlined above Mr Lewis observed that the
rotations were for a mlnlmum period of SlX (6 ) months He stated
that a maXlmum period was not discussed with staff At this
juncture, I note that Mr Nickel was rotated to Odessa for
approximately eleven (11 ) months and that Mr Caron worked there for
about fifteen (15 ) months In cross-examination, Mr Lewis estimated
16
that it would have taken about one (1 ) month for both of the grlevors
to become familiar with all of the operations at Odessa
Ms Thornton testified that the Employer considered the grievors'
headquarters to be the KSTP at all times material to this case She
asserted that headquarters did not change for the period of the
rotations here In lssue In her Vlew, the grievors' rights and
entitlements were referable throughout to the KSTP Ms Thorton had
previously discussed the lssue of headquarters, In the context of
OCWA employees, with Ms Sandra Harper, a Job Security Officer at the
Union's corporate office In the course of their discussions In
January, 1997, which focused on the assignment of employees out of
Parry Sound, they agreed that article 38 of the collective agreement
(current article 11) was inapplicable to OPSEU members working for
OCWA as all such staff attended at or worked at or from a permanent
OCWA facility In the course of their duties, thereby rendering it
unnecessary to designate a deemed headquarters for purposes of the
collective agreement As noted at the outset, both parties have
agreed that the grievors' headquarters, or permanent work location,
was the KSTP
Ms Thorton further testified that the Employer followed an
unwritten practice whereby employees rotated to another project would
only be permitted to travel In a company vehicle and on company time
if the new work location was more than forty (40) kilometres from
their headquarters or permanent worksite In such a scenarlO, the
17
employee would be permitted to pick up a company vehicle at their
headquarters and to travel to and from the rotation site during
working hours Conversely, Ms Thornton advised that if, as here,
the rotation location was less than forty (40) kilometres from
headquarters, the employee would be expected to report there directly
for the start of the day at 7 30 a m and to remaln there till the
end of the day at 4 00 P m Mr DeMarsh referenced the same
practice In his evidence, however, he suggested the threshold was
twenty-four (24) , and not forty (40) , kilometres This discrepancy
lS immaterial In the circumstances of this case
It was Ms Thornton's evidence that the Union did not take issue
with the movement of employees within forty (40) kilometres Ms
Thorton stated that she spoke to Ms Harper on two (2 ) occaSlons In
1997 on this subject and was informed that the Union did not object
to such movement She recalled that the Union's position was
premised on the fact the lssue was not addressed In the collective
agreement and that, as a consequence, management possessed the right
to reasslgn within forty (40) kilometres Ms Thornton documented
this alleged understanding as follows In a letter to Ms Harper dated
September 16, 1997 "We were of the understanding that to request an
employee to report to another work location/headquarters within 40
kms was not an lssue or covered In any Article of the Collective
Agreement" (Exhibit #17) In cross-examination, it was suggested to
her that Ms Harper thought they had been speaking of permanent
18
movement of employees rather than of temporary rotational
assignments Ms Thornton replied that if Ms Harper misunderstood
the lssue being addressed, she was not aware of such
misunderstanding
Ms Harper was called In reply to respond to Ms Thornton's
evidence Ms Harper recalled that she and Ms Thornton discussed a
"what if" situation In general term s , rather than a specific
situation She testified that she provided examples of where it might
be possible to move an employee's worksite within forty (40)
kilometres, such as the relocation of an entire office due to the
expiration of a lease, a lateral transfer, or the abolition of a
position Ms Harper did not remember any specific discussion about
rotational assignments It was the thrust of her evidence that the
Union's position today lS the same as it was In 1997, namely, that
the Employer can move employees around within forty (40) kilometres
of their permanent work location on a rotational basis as long as
they are compensated appropriately pursuant to the requirements of
the collective agreement
After considering all of the evidence surrounding the exchanges
between Ms Thornton and Ms Harper, I have not been persuaded that
there was a shared understanding as to how management was entitled to
administer rotational assignments I think it preferable, In the
circumstances, to address the lssue on the basis of the relevant
contractual provlslons
19
The Operator position at Odessa was formerly occupied by Mr
Harold Leakey This employee had been on a leave of absence and was
surplused from Odessa with the restructuring that occurred In 1996
When at Odessa, Mr Leakey worked forty (40) hours per week Ms
Heather Compson performed the Operator's job at Odessa following Mr
Leakey's departure She worked In the job on a full-time basis for
approximately one (1 ) year Her headquarters was In Kingston The
evidence discloses that Ms Compson reported directly to Odessa from
her home for the start of the workday Mr Nickel subsequently
replaced Ms Compson at Odessa
It lS apparent that Mr Leakey, Ms Compson, Mr Nickel and Mr
Caron all performed forty (40) hours of work per week while at
Odessa While Ms Thornton agreed that this fact suggested the Odessa
job might constitute a position, she did not consider the job as a
vacancy for collective agreement purposes, such as posting From her
perspective, the job at Odessa was held on a temporary basis by a
serles of employees working out of the KSTP Ms Thorton conceded In
cross-examination that glven the length of Mr Nickel's and Mr
Caron's tenure at Odessa, the position was "hardly temporary" While
lssues concernlng the application of article 6 (Posting And Filling
Of Vacancies Or New Positions) and article 8 (Temporary Assignments)
may arlse generally from the type of rotational assignment that
occurred In this instance, it lS unnecessary In my judgment to
address such lssues here Counsel for the Union, In argument, made
20
it clear that, while he referenced the articles for purposes of
context, he was not submitting they had been breached In the
circumstances of this case
The Union asserted that Mr Nickel and Mr Caron were treated
differently than other employees working In the Kingston Township
Hub The evidence relied on, much of which emanated from the cross-
examination of Mr Lewis, may be summarized as follows
(i) Mr Tim Richardson was assigned to Odessa to complete a
serles of ad hoc tasks, some of which came up on short
notice He was not rotated to Odessa as were the
grlevors While Mr Richardson was accorded the status
of "Operator-in-training", he was not an OCWA employee
Rather, he was an employee of Kelly Temporary Services
Mr Lewis stated that he, nevertheless, tried to glve
Mr Richardson "the same benefits as everyone else"
It lS clear from a reVlew of the Statement of Travel
Expenses, filed as Exhibit #12, that Mr Richardson
was compensated for lunch on twelve (12 ) occaSlons
while he worked at Odessa Odessa, as previously
noted, lS twenty-one (21 ) kilometres from the KSTP
and meals would, therefore, not ordinarily be paid for
under the collective agreement Mr Lewis testified
that he approved the compensation on a discretionary
basis,
(ii) Mr Randy Ethier was a Maintenance Mechanic with
headquarters in Kingston In September, 1999, he was
assigned to Odessa on eight (8 ) days These assignments
were referred to as ad hoc by Mr Lewis Mr Ethier
received a paid lunch on each of the aforementioned days
Mr Lewis stated that he exercised his discretion In
Mr Ethier's favour He advised that In so doing, he
considered the nature, conditions and complexity of the
job assigned,
(iii) Mr Bruce Huskinson was another Operator with headquarters
at Kingston He lived In the Lansdowne area Mr Huskinson
was rotated to the Kingston facilities In 1996 from
Lansdowne I was told that he regularly worked three (3 )
21
days a week In Lansdowne and two (2 ) days In Kingston
A Statement of Travel Expenses, filed as Exhibit #13,
showed that Mr Huskinson received a lunch allowance on
thirteen (13 ) occaSlons when he worked at Lansdowne In
September, 1998 Mr Lewis indicated that Mr Huskinson
received a paid lunch on those occaSlons as he was more
than twenty-four (24 ) kilometres from his headquarters
The allowance was provided notwithstanding the fact that
this employee lived In Lansdowne Mr Lewis described
this result as "a quirk" On the days Mr Huskinson
worked In Lansdowne, he reported directly to
that facility rather than first driving to Kingston to
collect a company vehicle for a return trip to Lansdowne
Mr Lewis believed that Mr Huskinson used his own
vehicle to travel to Kingston on the days he worked there,
(iv) Mr Andy McGrath was the Electrician responsible for
electrical maintenance at all of the projects In the
Kingston Township Hub His headquarters was the KSTP
At some point, this employee was rotated to the Kingston
Water Treatment Plant On the evidence, Mr McGrath
picked up a company vehicle from headquarters and drove
same to the Water Treatment Plant for the period of his
rotation Mr Lewis asserted that this employee was
treated differently from the grlevors for good reason
He advised that after performing the required checks at
the Water Treatment Plant, Mr McGrath would proceed to
do electrical maintenance work across the Hub, as needed
The company vehicle, wherein the necessary equipment was
stored, was used for this purpose This vehicle was
returned to the KSTP at the end of the day and would
remaln there overnight for security reasons
The relevant provlslons of the collective agreement read
ARTICLE 2 - MANAGEMENT RIGHTS
2 1 For the purpose of this Agreement and any other
Collective Agreement to which the parties are
subject, the right and authority to manage the
business and direct the workforce, including the
right to hire and lay-off, appoint, asslgn and
direct employee s, evaluate and classify positions,
discipline, dismiss or suspend employees for
just cause, determine organization, staffing levels,
work methods, the location of the workplace, the
kinds and locations of equipment, the merit system,
22
training and development and appraisal, and make
reasonable rules and regulations, shall be vested
exclusively In the Employer It lS agreed that
these rights are subject only to the provlslons of
this Agreement and any other Collective Agreement
to which the parties are subject
ARTICLE 11 - HEADQUARTERS
11 1 This article applies to employees who do not attend
at or work at or work from any permanent ministry
facility In the course of their duties, but for
whom a permanent ministry facility or other place
lS designated as an employee's "headquarters" for
the purposes of the provlslons of this Collective
Agreement and of various allowances which requlre
a headquarters to be specified
ARTICLE 13 - KILOMETRIC RATES
13 1 If an employee lS required to use his or her own
automobile on the Employer's business the following
rates shall be paid effective August 1, 1991
Kilometres Driven Southern Ontario Northern Ontario
0- 4,000km 30 cents/km 30 5 cents/km
4,001-10,700km 26 cents/km 26 5 cents/km
10,701-24,000km 22 cents/km 22 5 cents/km
over 24,000km 18 cents/km 19 0 cents/km
13 2 Kilometres are accumulated on the basis of a fiscal
year (April 1 to March 31, inclusive)
13 3 Attached hereto as Appendix 3 (Use of Privately
Owned Automobiles)
ARTICLE 14 - TIME CREDITS WHILE TRAVELLING
14 1 Employees shall be credited with all time spent In
travelling outside of working hours when authorized
by the ministry
14 3 When travel lS 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
23
destination and from the assigned hour of departure
from the destination until he or she reaches his
or her home or place of employment
14 6 All travelling time shall be paid at the employee's
basic hourly rate or, where mutually agreed, by
compensating leave
ARTICLE ADM 12 - MEAL ALLOWANCE
ADM 12 2 1 Cost of meals may be allowed only
ADM 12 2 2 If during a normal meal period the employee lS
travelling on government business other than
(a) on patrol duties, except as provided under
Article ADM 12 2 3, or
(b) within twenty-four (24 ) kilometres of his or
her assigned headquarters, or
(c) within the metropolitan area in which he or
she lS normally working,
APPENDIX 3 - USE OF PRIVATELY OWNED AUTOMOBILES
This letter will confirm the decision of Management
Board of Cabinet that the use of privately owned
automobiles on the Employer's business lS not a
condition of employment
The Union, In this instance, did not contest the right of the
Employer to rotate, or asslgn, employees to a different work location
within the Kingston Township Hub Counsel for the Union argued,
however, that the "personalized workplace" of Mr Nickel and Mr
Caron was changed In respect of the period during which they were
instructed to report directly to Odessa It was his submission that
this change, without any corresponding change In headquarters,
triggered entitlement under the collective agreement to reimbursement
24
for mileage and travel time It was counsel's further submission
that the extent of such entitlement should be measured from the
grievors' headquarters which, at all material time s , remained the
KSTP
Counsel for the Union acknowledged that neither grievor would
ordinarily be entitled to a meal allowance for lunch when working at
Odessa, as that location lS within twenty-four (24 ) kilometres of
their headquarters He noted, however, that Mr Richardon and Mr
Ethier both received the allowance when performing similar work at
Odessa Counsel suggested that there was no real distinction between
ad hoc and rotational assignments On his analysis of the situation,
the Employer, In the case of these other employees, had opted to
for e go its strict legal right to rely on the "twenty-four (24 )
kilometre rule" He asserted that as a matter of fairness and
consistency, both Mr Nickel and Mr Caron should be treated In the
same fashion
Counsel for the Union argued that the Employer, In effect,
required the grlevors to use their privately owned automobiles on its
business contrary to Appendix 3 He noted that there was no other
form of public transportation to Odessa and that Mr Caron had been
compelled to use vacation days when his vehicle was unavailable for
the two (2 ) days mentioned earlier Counsel also submitted the
evidence, surrounding the deployment of company vehicles around the
Hub, demonstrated that there would have been no operational
25
difficulty In allowing the grlevors to travel in a company vehicle to
and from Odessa and to leave such vehicle at Kingston overnight On
his assessment, sufficient vehicles remained at all sites for on -call
purposes
Counsel for the Union was critical of the manner In which the
Employer acted In this case He suggested that little, if any,
consideration was glven to the grievors' preferences or personal
considerations He referred, In particular, to Mr Nickel who had
structured his personal life around his headquarters in Kingston, In
the sense that his wife's employment and his child's/children's' day
care arrangements were located there Counsel referenced the
. . experienced by this of having
lnconvenlence grlevor as a consequence
to take his family to Kingston and then return back to Odessa for the
7 30 start of the work day Similar . . his
a m lnconvenlence, In
judgment, was experienced at the end of the day when the travel was
reversed I was asked to find that there would have been little
impact on the Employer's operations had the grievors been permitted
to arrlve at Odessa at 7 45 a m and to leave there at 3 45 P m
The Union asked for the following by way of remedy (i) a
finding that the Employer had violated the collective agreement, (ii)
an order that the Employer adhere to the collective agreement and
cease the contested practice, (iii) an order that the Employer
reimburse the grlevors for the additional mileage and travel time
resulting from the rotational assignments In Odessa, (iv) an order
26
that the grlevors be reimbursed by way of a meal allowance for lunch
for the period they were at Odessa, (v) an order that interest be
paid on all amounts found oWlng, and (vi) an order to rectify the
Employer's lmproper requirement that Mr Caron use vacation days when
unable to travel to Odessa in his personal vehicle
The Union relied on the following awards In support of its
position OPSEU (MacIntosh) and Ministry of Natural Resources,
2587/96 (Gray) , OPSEU (Union Grievance) and Ontario Clean Water
Agency, 263/98 (Abramsky)
Counsel for the Employer emphasized that prior to the rotation to
Odessa, Mr Nickel commuted thirty-five (35 ) kilometres from his
residence to Kingston She noted that subsequent to May, 1997, Mr
Nickel only had to travel fourteen (14 ) kilometres from his residence
to Odessa From her perspective, his commute was, therefore,
shortened in terms of both distance and time Counsel suggested that
Mr Nickel continued to drive to Kingston for reasons related to
personal choice and convenlence It was her submission that the
Employer should not have to pay this grlevor for "doubling back" to
Odessa Indeed, she argued that Mr Nickel's wife could have dropped
him off on her way to Kingston and picked him up on the way home
Simply stated, it was the Employer's position that as the location of
Mrs Nickel's workplace and the child care arrangements were outside
of its control, and beyond the purvlew of the collective agreement,
it should not be responsible for compensating Mr Nickel for travel
27
related thereto
Counsel for the Employer stressed that the additional five (5 )
kilometres travelled by Mr Caron to get to Odessa was not
significant She advanced the same argument In respect of the
additional time spent by this grlevor to travel from his residence to
Odessa This difference was estimated as between seven (7 ) and
sixteen (16 ) minutes, each way
Counsel for the Employer argued that when these grlevors were
travelling to Odessa they were, In substance, commuting to the work
location, just as they did when they reported to Kingston In her
submission, the grlevors were not on the Employer's business when
engaged In this commute and, accordingly, were not entitled to be
paid for either kilometres or time In the alternative, counsel
suggested that only the differential In distance and time should be
awarded On her analysis, this would only benefit Mr Caron, as Mr
Nickel had a shorter commute after being ordered to report directly
to Odessa
It was the Employer's further position that neither grlevor was
entitled to a meal allowance for lunch for the period they worked out
of Odessa This position was premised on the fact Odessa lS within
twenty-four (24 ) kilometres of the KSTP and that, as a result, there
lS no contractual foundation for awarding the benefit sought
Counsel also observed that Mr Richardson was not an OCWA employee
and that Mr Ethier was a Maintenance Mechanic whose entire job
28
consisted of numerous ad hoc trips to varlous projects In summary,
counsel suggested that these different circumstances supported the
varlance In approach She lastly noted that neither grlevor
submitted expense claims for the lunches now claimed In this
proceeding
Counsel for the Employer disputed the Union's assertion that
Appendix 3 was violated when the grlevors were asked to report to
Odessa through use of their own personal vehicle In her submission,
both grievors had a duty to show up at work regardless of whether the
worksite was located In Kingston or Odessa She stated it was
material that Mr Nickel and Mr Caron had access to company vehicles
once they arrived at Odessa Counsel suggested that the provision of
such a vehicle for ad hoc trips was the extent of the Employer's
obligation under Appendix 3 She rejected the grievors' claim that
they were entitled to be provided with a company vehicle for purposes
of getting to Odessa In this regard, counsel referenced the
Position Specification and Class Allocation form for the Operator
position That form contemplates that Operators, such as these
grlevors, may be called upon to work at all of the projects across
the Kingston Township Hub
For all of the above reasons, counsel for the Employer asked that
both grievances be dismissed In the alternative, she submitted that
the difference In distance and time referable to the rotation should
be paid only to Mr Caron on the grounds indicated above The
29
Employer relied on the following awards OPSEU (Williamson et al )
and Ministry of Transportation and Communications, 187/81 et al
(Barton) , OPSEU (Ross) and Ministry of Transportation and
Communications, 145/82 (Jolliffe) , OPSEU (Beaton) and Ministry of
Natural Resources, 1392/88 (Samuels) , OPSEU (Vernon) and Ministry of
Transportation, 1485/86 (Watters) , OPSEU (Kosnaskie) and Ministry of
Revenue, 2116/87 (Kates) , OPSEU (Elliot) and Ministry of Labour,
1544/89 (Dissanayake) , OPSEU (Pool) and Ministry of Correctional
Services, 596/83 (Roberts) , OPSEU (Gonzalez) and Ministry of
Correctional Services, 1782/93 (Kaplan) , OPSEU (Muscatello) and
Ministry of Correctional Services, 762/83 (Brent)
The parties agree that article 11 of the collective agreement lS
inapplicable to this dispute as the grlevors had a real, in contrast
to a designated, headquarters at the KSTP In the language of
article 11 1, the grlevors attended at or worked at or from a
permanent OCWA facility In the course of their duties In Beaton,
headquarters was defined as "where the employee works, or the
employer's facility which lS used as the employer's base of
operations" (page 6 ) In MacIntosh, headquarters was described as
"the location at which he or she ordinarily performs the work of the
position to which he or she has been appointed" (page s 5-6 ) The
excerpts from these two (2 ) awards accurately depict the link between
the grlevors and the work location at the KSTP
The parties further agree that the grievors' headquarters was not
30
changed by the rotational assignment to Odessa I note the following
observation, as found at page 8, In the MacIntosh award
"An employee's headquarters location does not change merely
because the employer temporarily requlres him or her to work
at some distance from the headquarters location associated
with his or her position This lS so even if the work
performed away from headquarters lS the same as the work the
employee performs at headquarters If (it) were otherwise,
prOVlSlons with respect to travel, accommodation and meal
expenses which become payable when an employee lS required
to work at a distance from his or her headquarters would be
meaningless "
It lS clear from the evidence that Mr Nickel and Mr Caron were
both hired into the KSTP and were told that it would serve as their
headquarters The grlevors worked out of that facility for a number
of years prlor to the events glvlng rlse to this dispute While they
would periodically work at other projects In the Kingston Township
Hub, as contemplated In their position description, their home base
was always the KSTP I find it understandable In the circumstances
why Mr Nickel would structure and organlze certain aspects of his
personal life around Kingston While, to a certain extent, this may
have been a matter of personal choice and convenlence, the selection
of that location was predicated In large measure on the Employer's
decision to make the KSTP the headquarters for his position
Before turning to the specific circumstances of this case, I make
the following general observations with respect to the concept of
headquarters
(i) a headquarters location lS the base at or from which
employees perform their work Employees, unless
31
otherwise agreed or directed, are normally expected to
report to headquarters at the start of their work day,
(ii) employees are further expected to commute to and from
work on their own time and by whatever means of
personal transportation they select In the ordinary
course, the Employer lS not responsible to compensate
employees for the distance or time involved In such
travel Nor lS the Employer required to provide a
vehicle to facilitate the commute In a sense, the
concept of headquarters lS a neutral or objective
standard glven that it excludes consideration of the
location of an employee's residence, a matter which
lS obviously totally outside of the Employer's control,
(iii) if after reporting to headquarters, an employee
travels to a different work location, he
or she may be entitled to claim contractual allowances
for kilometres travelled in his or her own vehicle and
for meals In both instances, the employee must be on
the Employer's business and must otherwise satisfy the
specific requirements of the allowance provlslons If
travel lS outside of working hours, the employee may
also be entitled to claim time credits In respect of
same In each instance, and subject to a contrary
indication In the collective agreement, the eligibility
for, and the extent of entitlement, lS referable to,
and calculated from, the headquarters location In my
judgment, this approach lS equally applicable to a
situation where, as here, the employee lS instructed to
report directly to another work site without first
attending at headqua rters,
(iv) as noted, Appendix 3 provides that the use of privately
owned automobiles on the Employer's business lS not a
condition of employment The fact an employee lS
required to commute to headquarters by car does not
infringe this prOVlSlon as such commute lS not part of
the Employer's business On my reading, Appendix 3
would be contravened if the Employer insisted that an
employee use their private vehicle to travel to work
sites other than their headquarters or to engage In
the type of ad hoc trips referenced earlier In this
award If an employee agrees to use their personal
vehicles for these purposes, he or she lS clearly
entitled to claim for the kilometres travelled As
stated previously, this Employer deployed OCWA
32
vehicles at Kingston, Odessa and Lansdowne for use
by employees on ad hoc trips
On the evidence, prlor to Ma y , 1997, Mr Nickel commuted thirty-
five (35 ) kilometres from his residence In Morven to the KSTP
Including the return trip at the end of the day, he drove his own
vehicle a total of seventy (70 ) kilometres After the aforementioned
date, Mr Nickel's commute to Odessa, Vla Kingston, totalled fifty-
SlX (56) kilometres each way In total, he was required to operate
his vehicle an additional forty-two (42) kilometres each day This
represents the distance of a return trip between headquarters and
Odessa
Prior to February, 1998, Mr Caron commuted nine (9 ) kilometres
from his residence to the KSTP Including the return trip at the end
of the day, he drove his vehicle a total of eighteen (18 ) kilometres
After the aforementioned date, Mr Caron's commute to Odessa from
his residence totalled fourteen (14 ) kilometres each way In total,
this grlevor was required to operate his vehicle an additional ten
(10 ) kilometres each day
It lS apparent that both Mr Nickel and Mr Caron travelled the
additional kilometres, as calculated above, outside of working hours
This was the direct result of the Employer's direction that they be
at Odessa at 7 30 a m and remain there until the end of the work day
at 4 00 P m
I have not been persuaded that the grievors' claim for kilometres
33
and time can be determined on the basis of the Employer's "Forty ( 40)
Kilometre Rule" , as described by Ms Thornton Firstly, I note that
it lS an unwritten practice During the course of the hearing, the
Employer did not seek to explain how or why it was developed, nor how
such practice meshed with other prOVlSlons found In the collective
agreement Equally as significant, I note that it has been applied
In an inconsistent fashion as Mr Nickel, himsel f, was permitted to
travel to and from Odessa In the period February to May, 1997 In a
company vehicle and on company time The difficulty with the
practice lS that it forces an employee to shoulder all of the extra
mileage costs and travel time when the work location lS moved less
than forty (40) kilometres away from headquarters at the Employer's
initiative This result would seem inconsistent with the basic
concept of headquarters, as canvassed above, and creates a threshold
for entitlement under articles 13 and 14 which lS not contained
within the articles themselves
After considerable thought, I conclude that the Employer must
compensate Mr Nickel for the extra kilometres he was required to
travel each day and for the additional time spent In that travel I
cannot accept the approach advanced by the Employer as it would, In
effect, treat the grievor's headquarters as Odessa for the period of
the rotational assignment and would 19nore the fact that his
headquarters remained the KSTP at all material times I find it more
appropriate to calculate and measure Mr Nickel's entitlement from
34
his actual headquarters, as his primary obligation was to report to
work there While it lS possible that another employee living near
Napanee might welcome a direct commute to Odessa because of the
lesser distance and travel involved, that option was not open to this
grlevor As stated previously, he was required to first travel to
Kingston, before proceeding to Odessa, because of family commitments
undertaken as a consequence of the location of his headquarters I
do not see it as an unfair burden to requlre the Employer to
compensate Mr Nickel for the Kingston-Odessa-Kingston segment of his
travel, as it was the Employer's initiative to have him report to a
location other than his headquarters I exclude from the obligation
to compensate any days on which Mr Nickel agreed with the Employer
to report directly to Odessa
I reach the same conclusion In respect of Mr Caron More
specifically, I find that the Employer must compensate him for the
extra kilometres he was required to travel each day and for the time
spent In that travel While entitlement would ordinarily be measured
from headquarters, the calculations referred to previously in respect
of Mr Caron's travel from home represent the actual distance
travelled and the time devoted to such travel I note from article
14 3 that, In certain circumstances, travel directly from an
employee's home lS contemplated In my judgment, this lS a reasonable
approach to adopt In fashioning a remedy for Mr Caron This type of
calculation would not be appropriate In respect of Mr Nickel as
35
Morven to Odessa was not the actual route taken for the reasons
expressed above which I have found to be legitimate
As stated previously, prlor to the events glvlng rlse to these
grlevances, Mr Nickel and Mr Caron were expected to report to their
headquarters at the KSTP for the start of the work day As a
consequence of a decision taken by the Employer for business reasons,
they were instead directed to report to Odessa In this factual
context, I think that the grlevors were on the Employer's business
when travelling to the rotation location In my judgment, the
Employer was not at liberty to unilaterally lncrease their travel
time without providing time credit for travel This award will serve
to compensate the grlevors for the extra distance and time incurred
as a consequence of the Employer's decision to rotate them to Odessa
At the same time, it factors out of the calculation the distance and
time involved In their regular commute to Kingston
On a plain reading of the collective agreement, the grievors were
not entitled to a meal allowance In respect of lunches taken while at
Odessa This results from the fact that Odessa was within twenty-
four (24) kilometres of their assigned headquarters at the KSTP
Given this fact, there lS no contractual foundation for the claim
The Union, instead, relies on evidence that certain other persons,
most notably Mr Richardson and Mr Ethier, received meals while
working at Odessa On my assessment, this evidence does not support
the grant of a benefit to the grlevors It lS material, In my
36
judgment, that Mr Richardson was not an OCWA employee at the time
and that Mr Ethier, a Maintenance Mechanic, was not on an extended
rotation while at Odessa but, rather, was there on a series of ad hoc
trips While this Vice-Chair might not have exercised discretion as
Mr Lewis did, I am not in the circumstances prepared to second guess
his decisions and am even more reluctant to determine that he bound
the Employer to provide these grlevors with a benefit to which they
were not entitled under the collective agreement
The Union asked that I rectify the consequences of the Employer's
requirement that Mr Caron take vacation or sick days when his
vehicle was being repaired and thereby unavailable for travel to
Odessa I decline to order the relief sought On my reading, Mr
Caron's grlevance of January 19, 1998 focused on the directive issued
by the Employer which allegedly changed his legal headquarters
contrary to the collective agreement In my view, the requirement to
use vacation or sick time which occurred some three (3 ) months later
was a distinct matter that could have been the subject of a separate
grlevance I think it would be wrong to address this lssue for the
first time In this proceeding, some two (2 ) years after the fact
As indicated above, the parties referred to a large number of
prlor awards In support of their respective submissions Both
counsel readily acknowledged that the circumstances of this case were
somewhat novel and had not been squarely addressed by past
jurisprudence
37
Of all of the awards cited, Muscatello bears the closest
resemblance to the instant case The grlevor In that matter was a
Probation Officer whose headquarters was the Brampton Parole Office
The grlevor resided approximately three (3 ) kilometres from his
office In October, 1983, the grlevor was assigned to the Mimico
Correctional Centre The award describes the purpose of the
assignment In the following terms "the assignment was temporary and
for the specific purpose of staff development, that l s, to educate
him In other aspects of the job for the benefit of both himself and
the Employer" (page 10 ) This developmental assignment lasted for SlX
(6 ) months The grievor's headquarters was changed to Mimico for the
duration of the assignment
On the evidence, the change in the grievor's headquarters caused
him to travel an extra forty-eight (48) kilometres a day in terms of
the commute to and from work Additionally, the commute took him
forty-five (45 ) minutes of driving time each way The grlevor
commuted on his own time and In his own vehicle As In the present
case, there was no public transportation between the grievor's
residence and the new work site The grlevor filed an expense sheet
for the month of October, 1983 claiming mileage between his home and
Mimico, and lunches for each day at Mimico The grlevance was filed
when these claims were refused The grlevance requested the
following relief (1 ) mileage from the grievor's residence to the
Mimico Correctional Centre, (2 ) meal allowance, and (3) travel time
38
to and from the developmental assignment
The Board found that in travelling to and from the developmental
assignment, the grlevor was required to use his own automobile on the
Employer's business In reaching this conclusion, the Board
referenced the following facts (i) the absence of public
transportation, (ii) the grlevor was allowed to work at the Brampton
Office on days when his automobile was not operating, and (iii) In
the circumstances of a developmental assignment of temporary
duration, it would have been impractical and unreasonable for the
grlevor to relocate The Board, therefore, determined that the
grlevor should be paid mileage under the former equivalent of current
article 13 In respect of the difference between what the grlevor
"would normally have to drive to work in Brampton and what he had to
drive to work in Mimico" (page 13)
It lS clear from a review of the award that in reaching the above
decision the Board considered that the Employer had assumed an
obligation to treat employees fairly and equitably In the
administration of travel expense claims This obligation was implied
from certain sections of the Ontario Manual of Administration On
this point, the award states
" By designating Mimico as the grievor's headquarters
and refusing to honour claims for travel expenses between
his home and Mimico, the Employer was In effect placing on
the grlevor all of the financial burden which would be
incurred at its request for his development as a Probation
Officer In its serVlce In our Vlew such a result under
the circumstances of this case would not be fair and
39
equitable to the grievor when travel and living expenses
can be allowable expenses for staff development courses
In other words, we do not consider that it lS necessarily
fair and equitable to allow the Employer to defeat any
obligation which it may have to pay for travel expenses
In connection with internal staff development assignments
by means of re-designating an employee's headquarters"
(page 11)
No reference was made In the case now before me to the Ontario Manual
of Administration or to any other similar policy I nevertheless
consider the broader reasonlng expressed In Muscatello to be
consistent with the approach I have elected to take in this instance
If legitimate travel expenses cannot be avoided by a redesignation
of headquarters, surely they must be recognized in a situation where
the headquarters remalns unchanged In the context of a direction to
report elsewhere
The Board in Muscatello denied the grievor's request for a meal
allowance and travel time It denied the former on the basis that
the grievor's assigned headquarters for the period was Mimico and he
was normally working there for the period In question As In the
present case, that grlevor was therefore not entitled to the meal
allowance provided under the collective agreement The Board denied
the claim for travel time on the basis that such time was spent
commuting between the grievor's residence and the new headquarters
In this regard, the award states "We do not consider that Article
23 1 (now article 14 1) was intended to compensate employees for such
time, but rather that it was intended to deal with travelling other
40
than that between home and headquarters" (page 13) The facts In
Muscatello are distinguishable as the present Employer did not change
the headquarters of either Mr Nickel or Mr Caron When travelling
to Odessa, these employees were clearly "travelling other than that
between home and headquarters" As a result, I do not consider that
the award in Muscatello assists the Employer on the lssue of travel
time
In my judgment, the Employer was entitled to rotate employees to
the varlOUS projects in the Kingston Township Hub pursuant to the
management rights contained In article 2 1 of the collective
agreement That article, inter alias, vests In the Employer the right
to asslgn and direct employees and to determine the location of the
workplace I have no doubt that the rotational assignments were
taken for sound business purposes and were designed to promote the
legitimate interests of OCWA The thrust of this award lS that the
exerClse of this right was subject to other applicable provisions of
the collective agreement, namely, articles 13 and 14 and Appendix 3
Such exercise also demanded that the Employer consider the impact of
the grievors' headquarters being located in Kingston Ultimately, I
have found that the Employer must compensate Mr Nickel and Mr Caron
for the extra kilometres travelled and for the additional time spent
In such travel I have also been persuaded that the Employer's
insistence they use their own vehicles to travel to a worksite other
than their headquarters amounted to a violation of Appendix 3 The
41
grievors' use of their vehicles for this purpose provides further
support for the decision to compensate them for the extra kilometres
travelled
On the evidence, I am satisfied that the Employer could have
provided a company vehicle to these grlevors for travel to and from
Odessa without any prejudicial effect on its operations Had that
been done, the Employer obviously would not have been responsible for
mileage If Mr Nickel had been offered the use of a company vehicle
to travel from his residence to Odessa and return, it would have
eliminated the need for him to first stop at Kingston before
proceeding to the work location Such a step might have set the
foundation for an agreement on the lssue of travel time I ralse
this possibility as, . . there were several alternate ways
In my Vlew, In
which entitlement could have been addressed by the parties so as to
avoid the need for SlX (6 ) days of hearings I encourage the parties
to consider the negotiation of a protocol In respect of these
rotational assignments to better serve their respective interests
For all of the above reasons, I find that the Employer violated
the collective agreement and order that the grlevors be reimbursed
for the extra kilometres travelled and the additional time spent In
such travel Mr Nickel lS not to be compensated for the days on
which he agreed to report directly to Odessa The grlevors are
entitled to an award of interest on all monies oWlng The claim for
42
meal allowance lS denied, as lS Mr Caron's request surrounding his
use of two (2 ) vacation days I remaln seized to deal with any
lssues relating to the implementation of this award
Dated at Windsor, Ontario this 22111 day of August, 2000
--
- ,
'~,: ~I ~'7<~~~11~h::~~j!~;:J
I. ..')". r.!~.-- .
Michael V Watters, Vice-Chair