HomeMy WebLinkAboutBabcock 19-05-01In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
COMMUNITY LIVING TEMISKAMING SOUTH
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, Local 646
Grievances of Owen Babcock
OPSEU File No. 2018-0646-0005
Arbitrator: Randi H. Abramsky
Appearances
For the Union: Dan Hales Regional Grievance Officer
For the Employer: Stephanie Jeronimo Counsel
Hearing: April 23, 2019, in North Bay, Ontario
AWARD
At issue is whether the Employer violated the collective agreement when it failed to pay
the Grievant for travel time and mileage when he was required to attend mandatory training
at the Employer's main office in Haileybury, Ontario, on October 3 and 4, 2018.
Facts
2.The parties proceeded by way of an Agreed Statement of Fact, the "Will Say Statement of
Andrea Steis", Human Resources Supervisor, which came in uncontested, and then argued
their respective positions. The Employer provides residential care for developmentally
challenged adults in a number of group homes in the North Bay area.
3. The Agreed Statement of Fact provides as follows:
1.Mr. Babcock has been working for the Employer in the position of full-time nights
counselor 1 at the Evanturel residence in Englehart, ON, since May 2006.
2.Mr. Babcock is on the call-in list at all of the Employer's other residences. No mileage
is payable for attending work at another residence.
3.Mr. Babcock was scheduled by the Employer to attend CPI training on October 3 and
4, 2018 at the main office located at 513 Amwell St., Haileybury ON. This training is
classified as mandatory training by the Employer.
4.To accommodate Mr. Babcock's attendance at the training his 10 hour scheduled night
shifts on October 2 and 3 were covered by another employee arranged by the Employer.
5.On September 19, 2018, Mr. Babcock spoke to his supervisor Kim Jibb requesting that
he be paid mileage or provided with the agency vehicle and travel time to attend the
training. Mr. Babcock was infotmed that mileage and travel time would not be covered
nor would he be provided with an agency vehicle.
6.From 2008 through 2016, Mr. Babcock did not make any claims for mileage or travel
time when he attended mandatory training sessions.
7.In 2017, Mr. Babcock did make such a request, which was denied. Mr. Babcock filed
a grievance with respect to this denial, however as the grievance was untimely it was
withdrawn.
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8.Mr. Babcock attended the training as scheduled on October 3 and 4, 2018. He was paid
for 20 hours for attending 14 hours of training.
9.In 2018, an employee at the Evanturel Residence became a trainer as part of our "train
the Trainer" program. In her capacity as a trainer, this employee was paid for her
mileage when she facilitated five or six training sessions per year.
10.On October 4, 2018 Mr. Babcock emailed his supervisor Ms. Jibb requesting mileage
and travel time from his base group home (Evanturel residence) to attend the training
on October 3rd and 4th 2018. Mr. Babcock requested mileage from the Evanturel
residence to the main office which amounted to 99.2 km each day. He requested 0.5
hours travel time each way amounting to 1 hour per day.
11.On October 9, 2018 Mr. Babcock received an email response from his supervisor Ms.
Jibb denying the request.
12.On October 16, 2018 Mr. Babcock filed a grievance.
13.On November 26, 2018 Mr. Babcock received the Employer's Step 3 grievance
response, denying the grievance.
4. The "Will Say Statement of Andrea Steis" provides as follows:
1.I am currently the Human Resources Supervisor for the Employer. I have been in this
position since 2015.
2.I started working for the Employer on or about February 27, 2006. At that time, I held
the position of Finance Clerk. On or about January 1, 2015 I moved to my current
position of Human Resources Supervisor on an interim basis, while continuing to act
as the Finance Clerk. In November 2016, I permanently moved to the Human
Resources Supervisor position.
3.As the Finance Clerk, I was responsible for processing all of the mileage and expense
claims for bargaining unit members. In the approximately ten years I worked in that
position, I did not receive any claims for mileage or travel time to attend mandatory
training sessions.
4.In my current role as the Human Resources Supervisor, I am involved in the
administration of the collective agreement. I am also the back up for the Finance
Department.
5.Since 2015, there has been no change in the Employer's practice. Staff do not receive
mileage or travel time for attending mandatory training.
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6.In 2018, a bargaining unit employee at the Evanturel Residence became a trainer as
part of our "Train the Trainer" program. In her capacity as a trainer, this employee was
paid for her mileage when she facilitated five or six training sessions per year.
7.In the fall of 2018, I participated in bargaining for the renewal of the Collective
Agreement that expired on June 30, 2018. During bargaining, Article 24.03 was
discussed, however, no changes were made and the parties agreed to maintain the status
quo.
5.The grievance alleges a violation of Articles 2, 24.01and 27.07. The Employer's Step 3
response states, in relevant part:
As you are aware our procedure has been that we do not reimburse mileage
or travel time for the mandatory training (as per Article 24.03) as this is in
house training. The location where the training is being held is considered
your point of work for that day. On October 3rd and 4th you attended the
CPI course at the Main Office, where you were paid 20 hours for a 14 hour
course, which has been not onley our procedure, but in accordance with
Article 24.03.
6.The relevant provisions of the collective agreement include the following:
ARTICLE 2— MANAGEMENT RIGHTS
2.01. The Union acknowledges and recognizes that the management of the
Employer's operations and the direction of the working force are fixed
exclusively with the Employer and shall remain solely with the Employer
except as specifically limited by an express provision of this Agreement.
ARTICLE 24— EMPLOYMENT EXPENSES
24.01. Kilometre Allowance
The Employer shall pay an allowance of forty-three cents ($0.43) per
kilometer to employees authorized or directed to use their cars or vehicles.
Authority is by the respective Manager (effective upon ratification).
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24.03 Training
The Employer agrees to pay the registration fee for employees renewing
their First Aid Training, CPR, CPI qualifications. Full-time employees will
be given time off, up to sixteen (16) hours, for time spent taking the course.
Full-time midnight employees will be paid for their regularly scheduled
hours for the shift(s) immediately preceding the days(s) of the course and
they will not be expected to make up the difference in hours between their
normal hours of work and the hours spent taking the course. Full time
midnight employee will be credited for the time spent taking the course if
they are not scheduled to work. Part-time employees will be paid their
regular rate of pay up to sixteen (16) hours for time spent taking the course.
Maintaining a current first-aid certificate is considered a condition of
employment.
This article pertains to all mandatory courses.
ARTICLE 27- HOURS OF WORK AND OVERTIME
27.07. Employees who are required to travel outside their normally
scheduled hours shall receive straight time for all hours spent traveling.
Reasons for Decision
7.The goal in a contract interpretation case is to determine the intent of the parties, based on
the words contained in the collective agreement. As stated by Arbitrator Knopf in Re
Kawartha-Haliburton Children's Aid Society and OPSEU, Local 334, 2010 CarswellOnt
8001 (Knopf), at par. 18:
When called upon to interpret a contract, an arbitrator must give effect to the
intentions of the parties. To do this, an arbitrator must presume that parties intended
what they said and give ordinary meaning to all the express provisions they adopted
into their contracts. ...
8.An arbitrator is to consider not only what the parties included in their agreement, but also
what they did not include. Arbitrator Sudykowski made this point in Re North York General
Hospital and SEIU, Local 1(Bisram), 2014 CarswellOnt 16154, at par. 31:
Mt is the words that the parties have agreed to use to express their intention
which are of primary importance. The parties to a collective agreement are
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presumed to say what they mean and mean what they say. Words or phrases
that are not there may be as significant as those that are. Allegedly missing
words or terms cannot be implied under the guise of interpretation ...
9.Another applicable principle of contract interpretation is that where a party alleges a
monetary benefit, the onus is on the Union to establish that it was the intention of the parties
to confer that benefit in "clear and unequivocal terms." Re Noranda Mines Ltd (Babine
Division) and USW, Local 898 [1982] 1 W.L.A.C. 246 (Hope), at pp. 261-262; Re OPSEU
and Ministry of Community Safety and Correctional Services, 2007 Carswell 10563
(Herlich), at par. 66.
10.Applying these principles to the facts of this case, I am not persuaded that the Union has
met its onus. The parties addressed "Employment Expenses" in relation to mandatory
"Training", in Article 24.03. That provision requires the Employer "to pay the registration
fee for employees renewing their First Aid Training, CPR, [and] CPI qualifications", and
to pay time for employees to attend the training. No mention is made of travel time or
mileage. By including both registration fees and time to attend, but not travel time or
mileage, the clear inference is that such expenses will not be paid.
11.This interpretation is aided by the long-standing past practice of the Employer not paying
mileage or travel time for not only the Grievor from 2006 to 2018, but all other employees
as well — with the exception of the trainer, which will be addressed below. The practice
here has been consistent and long-standing, and the Union leadership (who are also
required to attend mandatory training sessions), was well aware of that practice. Re
Hamilton Health Sciences and Ontario Nurses' Association, 2018 CarswellOnt 1928
(Stephens), at pars. 21-22.
12.For similar reasons, I am not persuaded that the Union met its onus that travel time is owed
to the Grievant under Article 27.07. Under Article 27.07, which deals with overtime issues,
"[e]mployees who are required to travel outside their normally scheduled hours shall
receive straight time for all hours spent traveling." Although the Grievant normally worked
the night shift, during the two days of training, his schedule was changed to the day shift.
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For those two days, his "normally scheduled hours" were day shift hours. Consequently,
he was not required to travel outside of his scheduled hours on those two days.
13.Finally, I am not persuaded that the Grievor was entitled to be paid mileage under Article
24.1. Under Article 24.1, Kilometre Allowance, the Employer is required to pay mileage
when the employee is "authorized or directed to use their cars or vehicles." Here, the
Grievor requested authorization to use his car to attend the training and that request was
denied. In addition, his work location for the two training days was also changed, and it is
undisputed that "travel time" does not include an employee's commute to work.
14.Even if I am wrong about that, and the Employer could be viewed as "directing" the
Grievor to attend at the Main Office, and the only feasible way of getting there was to drive
his car, the evidence establishes that the Union is estopped from relying on that provision.
Estoppel was explained in Re Toronto Police Services Board and Toronto Police
Association, 2007 CarswellOnt 10710 (Tacon), at par. 80, as follows: "Estoppel is a legal
principle that prevents a party from asserting its strict legal rights where it has led the other
party, by its words or conduct, to believe that it will not do so, and the other party has relied
on that belief to its prejudice or detriment." The elements required for an estoppel are all
present here, including detrimental reliance. According to the "Will Say" statement of
Human Resources Supervisor Steis, which was not challenged, the parties discussed
training expenses during bargaining in October 2018, but no changes were made and the
parties agreed to maintain the status quo.
15.In term of the trainer, who was paid mileage, for attending the training on October 3 and 4
as a "trainer", I find her situation to be distinguishable from the Grievor, even though both
are bargaining unit employees and subject to the collective agreement. She attended the
session as the trainer — an assignment she worked. The Grievor attended as a trainee, who
attended the training. The trainer would be entitled to mileage under Article 24.1, as she
was directed to work as a trainer at the main office in Haileybury on those two dates (and
any others she was directed to attend at the trainer). There was no evidence that she was
also paid for travel time.
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16.I recognize that the location of the training in Haileybury is a fair distance from Englehart
(where the Grievor normally works). It was 99.5 kms round trip, each day. The location
impacts those employees who work in Englehart more than those who work closer to
Haileybury. But that greater impact is not a basis for an arbitrator to impose a requirement
to pay mileage or travel time that cannot be found in the collective agreement. As stated
by Arbitrator Sudykowski in Re Sorbara Development Group Inc. and Labourers'
International Union, Local 183, 2015 CarswellOnt 6314, at par. 18:
It is not open to an arbitrator to rewrite the parties' agreement....The
arbitrator cannot amend or otherwise alter the meaning or application of the
collective agreement because he considers it fair or otherwise appropriate
to do so, or because of his view (expert or not) of what the parties.. .must
have...intended. The grievance arbitrator is tasked with determining what
the collective agreement provides or requires, not what he thinks it should
require, regardless of the perceived fairness of the effect on either party or
on bargaining unit employees. The parties and bargaining unit employees
are entitled to no more or less than the benefit of the bargain described by
the words they have agreed to in their collective agreement. ... If the parties
or either of them are dissatisfied with the consequences of their collective
agreement bargain as detertnined by a grievance arbitrator it is up to them
to seek a collective bargaining solution. ...
17.These principles apply here as well.
18.For all of the above reasons, I conclude that the grievance must be dismissed.
Issued this 1st day of May, 2019.
Raodi tglam,dev
Randi H. Abramsky, Arbitrator
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