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HomeMy WebLinkAbout2020-1120.Veenhof.21-06-10 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2020-1120 UNION# 2020-0224-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Veenhof) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE David R. Williamson Arbitrator FOR THE UNION Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sean White Treasury Board Secretariat Legal Services Branch Counsel HEARING DATE January 18, and June 3, 2021 - 2 - DECISION [1] By way of a grievance dated May 15, 2020, Mr. Dustin Veenhof grieves the application of the Employer’s meal expense reimbursement policy when travelling in the course of performing his job duties. The grievance remained unresolved and came to be heard at arbitration under the provisions of Article 22.16 of the collective agreement. At that time the parties made submissions on the matter based solely on several written documents, and a joint agreed statement of facts. [2] The Joint Agreed Statement of Facts. 1. In March 2019, the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) announced its decision to withdraw from enforcement of animal welfare protection in Ontario. Effective June 29, 2019, Animal Welfare Services (“AWS”) was created as a new entity within the Ministry of the Solicitor General to fill this enforcement role on an interim basis. 2. Effective January 2020, upon the enactment of the Provincial Animal Welfare Services Act, 2019, AWS assumed responsibility for those enforcement services on a permanent basis. 3. In 2020 alone, AWS conducted over 17,000 inspections and investigations. Investigators do shift work, which typically includes working a combination of shifts from 8-8 Monday to Friday, and from 9-5 on weekends. The work in question often includes driving to and from sites for inspections, and overtime. 4. The Grievor, Dustin Veenhof, was hired as Senior Investigator in Animal Welfare Services in January of 2020. 5. The Grievor lives in Kemble, Ontario, a rural town that cannot be described as a part of a metropolitan area. For the duration of his employment as a Senior Investigator he has worked out of his home. This arrangement is the normal course of things, not the result of the pandemic. His home can be described as his headquarters. 6. The Grievor was assigned to the West region, which spans the following areas, counties/districts of Brant, Bruce, Chatham-Kent, Elgin, Essex, Grey, Haldimand- Norfolk, Huron, Lambton, Middlesex, Oxford, Perth, Wellington and surrounding areas. 7. It is also possible, given the Grievor’s location within the West region, that he would also be dispatched to calls that border on the Central region, which spans the - 3 - following areas, counties and districts of Dufferin, Haliburton, Kawartha Lakes, Muskoka, Northumberland, Peterborough, Simcoe and surrounding areas. 8. The relevant portion of his job to this Grievance, is the requirement that he conduct inspections and investigations of animal welfare complaints. 9. The complaints are communicated to him by email through the Ministry’s dispatch service. 10. The Grievor prioritizes the complaints based on their urgency. Depending on the nature of the complaint, he typically responds to them immediately if the complaint is urgent or up to two days after receiving it if the complaint is less urgent or as his schedule allows. 11. Travel distance to the site of the complaint varies. This Grievance is limited to occurrences where travel more than 24km was necessary for him to perform his job duties. The Employer has not reimbursed any meal claims for such expenses since the Grievor joined AWS in January 2020. 12. The duration of the travel also varies depending on the location and nature of the complaint. The Grievor is typically on site anywhere from 30 minutes to the full work day. A complaint can take multiple visits to fully investigate. However, not all complaints require a site visit, as some can be dealt with via telephone. 13. Tasks at the site of the complaint typically include but are not limited to interviewing relevant parties, photographing the site, and inspecting animals. A broader overview of the Grievor’s job duties are set out in the job description for the position. 14. The Grievor worked a rotational schedule of day and evening shifts and rotating weekends. 15. There is no predictable pattern or routine, urgency or seriousness of the complaint, nor how long it will take to investigate. In a typical week the Grievor may be required to travel between one and five times and typically some portion of those occurrences are over a meal period and over 24 km from home. [3] The Collective Agreement provides in Article UN 12 – MEAL ALLOWANCE the following relevant provisions: UN 12.2.1 Cost of meals may be allowed only: UN 12.2.2 If during a normal meal period the employee is travelling on government business other than: - 4 - (a) on patrol duties, except as provided under UN 12.2.3 or (b) within twenty-four (24) kilometers of his or her assigned head- quarters, or (c) within the metropolitan area in which he or she is normally working; UN 12.2.3 If an employee on patrol duties is reimbursed for overnight accommodation required for the trip; UN 12.2.4 If, in an unusual non-recurring situation, the department head authorizes such payment; UN 12.2.5 If, in any recurring situation, Management Board has authorized such payments because of the special nature of the assignments. UN 12.2.6 In accordance with the Employer’s Travel, Meal and Hospitality Expenses Directive, as revised August 2006, which shall not be altered for this bargaining unit without the consent of OPSEU, reimbursement rates for meals, including taxes and gratuities effective January 1, 2009 are the following: Breakfast $8.75 Lunch $11.75 Dinner $20.00 [4] Other relevant provisions of the Collective Agreement include: 22.14 GENERAL 22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements. 22.16 MEDIATION/ARBITRATION PROCEDURE 22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner. 22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise. - 5 - [5] On May 21, 2020 the Grievor, among others, was sent, an email from Nasim Husnani, Acting Senior Manager, Program Development, on the subject of ‘Expense Claim Guide & Travel, Meal and Accommodations’. It stated in relevant part: Day-to-Day Operations and Meals Inspectors/Senior Investigators are expected to travel as a regular part of their jobs. As a result, meals are not reimbursed unless you have obtained prior approval from your Regional Supervisor. [6] The Travel, Meal and Hospitality Expenses Directive from Management Board of Cabinet, as amended January 1, 2020, states in relevant part: 6.2 Reimbursable Meals Reimbursement will not be provided for meals consumed at home or included in the cost of transportation, accommodation, seminars or conferences. If you travel as a regular part of your job, your meals will not normally be reimbursed unless you have obtained prior approval. [7] It is the position of the Union that there are situations where Mr. Veenhof is entitled to be reimbursed for the cost of meals in the course of performing his work duties. The Union asserts that his eligibility is determined by the provisions of the collective agreement and not the Employer’s policy document or the email from Nasim Husnani and that, in the event of there being any conflict of terms, the provisions of the collective agreement prevail. It is pointed out by the Union that the policy directive was not jointly negotiated and nor is it incorporated by reference into the collective agreement. Moreover, the reference made to the Directive in the collective agreement is only to meal rates. The Union argues that on certain occasions Mr. Veenhof meets the criteria laid down in Articles UN 12.2.1 to UN 12.2.5 of the collective agreement and is therefore eligible to be reimbursed for meal expenses on those occasions. [8] The Union submits that in order to qualify for a meal reimbursement an employee needs to meet just one and not all of the sets of conditions in Articles UN 12.2.2 to 12.2.5, and that in the case of Mr. Veenhof there are occasions where he meets all of the provisions laid out in Art. UN 12.2.2. Namely, he was travelling on government business; was carrying out inspections as part of his core duties and not patrolling and watching over an area; was not within twenty-four kilometers from his headquarters; and that he was not in any metropolitan area. As such, therefore, the Union submits the grievance should succeed. [9] In its submission the Union requested that the decision in the instant matter be limited to liability and not to remedy, and for it to be noted that as this grievance was - 6 - heard under the provisions of Art. 22.16 of the collective agreement this decision is without precedent. The Employer in its submission makes this same request. [10] It is the position of the Employer that there is a difference between travelling on government business and what Mr. Veenhof does, which is travelling as a regular part of his daily job duties and that, as such, Article UN 12.2.2 of the collective agreement does not apply to Mr. Veenhof’s situation. Rather, his travel is a recurring event submits the Employer and that, as such, Article UN 12.2.5 has applicability. Under this Article, argues the Employer, for meals to be reimbursed requires the authorization of Management Board and that this has not happened in Mr. Veenhof’s case. Accordingly, the Employer seeks that Mr. Veenhof’s grievance be dismissed. [11] In addressing the matter of the instant grievance it is the collective agreement agreed between the parties that is the determining document. It is the content of the collective agreement that prevails in this instant matter where there is any conflict of provisions between those in the collective agreement and the referenced Travel, Meal and Hospitality Expenses Directive, or the referenced email communication dated May 21, 2020. [12] In the collective agreement, Art. UN 12.2.1 provides that the cost of meals may be allowed where any one of four specified criteria are met as set out in Articles UN 12.2.2, UN 12.2.3, UN 12.2.4, or UN 12.2.5. In the instant matter it is found that Mr. Veenhof meets the criteria set out in Art. UN 12.2.2. [13] The plain reading of Art. UN 12.2.2 is that Mr. Veenhof is travelling on government business in carrying out his work duties. He is not travelling on personal business or on the business of any other company or organization. As such he is entitled to a meal reimbursement unless one or more of the three exceptions set out as UN 12.2.2 (a), (b), or (c) apply. [14] None of these foregoing exceptions apply in the circumstances of Mr. Veenhof’s claim for meal reimbursement as he is not on patrol duties, not within twenty-four kilometers of his assigned headquarters, and is not working inside a metropolitan area. [15] In order to find as the Employer urges would require there to be a fourth exclusion present in Art. UN 12.2.2, either explicit or implied, that would read to the effect of ‘unless one is travelling on government business where travel is a regular part of the employee’s job duties’. That cannot be done, as under the provisions of Article 22.14.6 of the collective agreement the parties have agreed that “the GSB shall have no jurisdiction to alter, change, amend, or enlarge any provision of the Collective Agreements.” - 7 - [16] Accordingly the Grievance of Mr. Veenhof succeeds. As agreed by the parties in this matter, it is hereby noted that this Grievance was heard under the provisions of Article 22.16 of the collective agreement and that this decision is without precedent. Dated at Toronto, Ontario, this 10th day of June, 2021. “David R. Williamson” _______________________ David R. Williamson, Arbitrator