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HomeMy WebLinkAbout2021-1553.Rismay et al.23-04-05 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-1553: 2021-1554; 2021-1672; 2021-1673; 2021-1674; 2021-1675; 2021- 1760; 2021-1761; 2021-2010; 2021-2011; 2021-2488; 2022-2488; 2022-2634; 2022-7201; 2022-7202 UNION# 2021-0271-0003; 2021-0271-0004; 2021-0271-0005; 2021-0271-0006; 2021- 0271-0007; 2021-0271-0008; 2021-0271-0009; 2021-0271-0010; 2021-0271-0011; 2021-0271-0012; 2021-0271-0013; 2022-0271-0001; 2022-0271-0002; 2022-0271-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Rismay et al) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Adam Veenendaal Morrison Watts Counsel FOR THE EMPLOYER Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 28, 2023 - 2 - Decision [1] A union grievance and individual grievances filed by fourteen Court Reporters employed at the Milton Courthouse came before the Board pursuant to article 22.16 of the collective agreement. The parties agreed to deal first with the union grievance filed as GSB file # 2021-0791 and obtain a decision. [2] When the union grievance was taken up the employer moved that it should be summarily dismissed because the particulars the union had provided, if accepted as true, are not capable of establishing a prima facie violation of the Collective Agreement alleged. [3] The union’s particulars asserted that the Milton Courthouse, where the Court reporters worked was temporarily vacated due to a health and safety concern. As a result the Court Reporters were required to work out of several alternate sites in Burlington, Ontario, from July 22, 2021 until March 31, 2022. [4] In the union grievance the union claimed kilometre rates (Article 13), travel time (Article 14), and meal allowance (Article UN12), for the period of the temporary relocation, arguing that Court Reporters’ “headquarters” had changed during that period from the Milton Courthouse to their alternate workplaces in Burlington. The union asserted that due to the relocation, their commute from home to work became significantly longer, and also caused significant inconvenience to them, since they had organized their personal lives on the understanding that they will be working in Milton. [5] The Board upheld the employer’s no prima facie case motion and dismissed the union grievance, finding that the temporary relocation of the employees’ workplace to sites within 40 kilometres of their regular workplace did not result in change of their headquarters, and that if accepted as true, the facts do not disclose a violation of Article 11 of the Collective Agreement. - 3 - [6] In the individual grievances under consideration here, the union asserted “additional facts” which it relied upon to argue that the grievors were entitled to kilometre rates, travel time, and meal allowance, under the same Collective Agreement provisions, despite the finding by the Board that their headquarters had not changed and that Article 11 had not been contravened. [7] The additional facts with respect to one of the 14 grievors, Ms. Nickisha Lee, were adduced as a sample. The travel report for Ms. Lee for the period June 14, 2021 to March 7, 2022 was filed showing that in that period, when Ms. Lee was working in Burlington, her travel report had several entries indicating that she was paid kilometre rates, travel time, and meal allowance. That information was relied on to argue that the employer had itself determined that Ms. Lee was entitled to those payments during the period of the temporary her relocation to Burlington. [8] Employer counsel reviewed those entries relied upon by the union and pointed out that on those occasions Ms. Lee received those payments because she had been required to travel in her own vehicle from her Burlington workplace to other locations to perform work assigned to her by management. [9] The union did not challenge the employer’s interpretation of the travel report, and I also accept it. The payments in question were made when Ms. Lee was travelling to locations other than her regular place of work to perform work assigned to her. That does not constitute a precedent or an acceptance by the employer that employees were entitled to kilometre rates, travel time or meal allowance when commuting from home to the headquarters for work. The Collective Agreement requires those payments in the former situation, but not in the latter. [10] For those reasons, the grievances fail and are hereby dismissed. Dated at Toronto, Ontario this 5th day of April 2023. “Nimal Dissanayake” Nimal Dissanayake, Arbitrator