HomeMy WebLinkAbout1990-2670.Kahgee.92-07-09 Decision1992 - OPSEU (Kahgee) and Ministry of Citizenship, GSB#1990-2670, (Stewart)
EMPLOYES DE LA COURONNE DE L'ONTARIO commission DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO).
M5G 1Z8 BETWEEN. BEFORE : FOR THE GRIEVOR 4 16 326-1388 (4 16) 326-1396 2670/90 FOR THE EMPLOYER IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before
THE GRIEVANCE SETTLEMENT BOARD HEARING OPSEU (Kahgee) -Grievor and -The Crown in Right of Ontario (Ministry of Citizenship) Emp 1 oyer S. Stewart J. Carruthers A. Stapleton Vice-Chairperson
Member-Member V. Reaume Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors J. Knight Counsel Fraser & Beatty Barristers & Solicitors November 6, 1991 May 21, 1992
DECISION In a grievance dated October 19, 1990, M r R. Kahgee alleges that: "Management treated me unreasonably i n regard t o my living allowance". A t the t i m e of the grievance
M r . Kahgee was employed as a Business Development Officer i n the Native Community Branch of the Ministry of Citizenship. It is the Union's position that the Employer has violated
A r t i c l e A.1 and A r t i c l e 4.5 of the Collective Agreement. basis of race and ethnic origin, among other grounds. M r . Kahgee is a native. It is the Union's position that M
r . Kahgee was discriminated against on the basis of his race or ethnic origin. A r t i c l e 4.5 provides as follows: A r t i c l e A.1 prohibits discrimination on the Relocation expenses
shall be paid i n accordance with the provisions of the Employer's policy. It is the Union's position that M r Kahgee's circumstances f a l l within the provisions of Article 4.5 and
that he was not paid relocation expenses i n accordance with the Employer's policy. Alternatively, i n the event that the Board were t o conclude that the circumstances of t h i s case
do not f a l l within the provisions of Article 4.5, it was the Union's position that the Employer has an obligation t o deal with M r . Kahgee i n a manner that is reasonable, i n good
faith and non-discriminatory and t h a t t h e Employer has breached i t s obligation t o the grievor i n t h i s regard. The remedy sought by the grievor is payment of $6000.00, the
difference between the monies he received pursuant t o a
2 second secondment agreement and the amount he received pursuant t o his i n i t i a l secondment agreement, the details of which are set out below. It is the Employer's position, f
i r s t of a l l , that the grievance was untimely and ought therefore t o be deemed t o have been withdrawn i n accordance w i t h Article 27.13 of the Collective Agreement. It is the
Employer's further position that M r . Kahgee had not been discriminated against on the basis of race or ethnic origin. As well, it is the Employer's position that M r . Kahgee's circumstances
do not f a l l w i t h i n the provisions of Article 4.5, as those provisions relate t o the f i l l i n g of a vacancy, which was not the situation of M r . Kahgee, who was on a secondment.
It is the Employer's further position that i f the circumstances of t h i s case do not f a l l w i t h i n the provisions of Article A.1 or 4.5 of the Collective Agreement the complaint
involves a matter relating t o the Employer's exercise of i t s managerial authority and the Board has no inherent jurisdiction t o consider the comp l a i n t To a large extent, the
relevant facts were not i n dispute. M r . Kahgee joined the Native Community Branch of the Ministry of Citizenship i n November 1988. M r . Kahgee commenced his employment i n an unclassified
capacity i n the
3 position of Business Development Officer i n Sault S t . Marie. T h i s position was classified as Industrial Development Officer 1. In J u l y , 1989, M r . Kahgee became a member
of the classified service, remaining i n the same position. M r . Kahgee's permanent place of residence a t that time was i n Southampton, where his wife and family resided. M r . Kahgee
rented accomodation i n the home of his brother-in-law near Sault Ste. Marie. Effective November 19, 1989, M r . Kahgee was assigned to the Toronto office of the Native Community Branch
on a secondment. The position i n the Toronto office arose as a result of a Business Development Officer i n that office accepting an acting position i n the Branch. M r . Kahgee testified
that he was advised about the opportunity by the director of the branch, M r . R. Dickson. M r . Kahgee described M r . Dickson' s ethnic background as "non-status native". M r . Kahgee
t e s t i f i e d that M r . Dickson encouraged h i m t o apply for the secondment. It was a l a t e r a l move for M r . Kahgee i n terms of classification and salary, however M r .
Kahgee agreed w i t h M r . Knight i n cross-examination that the secondment was a "developmental opportunity" and would be of benefit t o h i m i n terms of an opportunity t o enhance
his knowledge and s k i l l s . M r . Kahgee was t o f i l l the position for a fixed term, between November 20, 1989, and March 31, 1990.
4 The secondment agreement is dated November 17, 1989 and i t s 1. 2. 3. 4. 5. 6. 7. 8. terms s t a t e a s follows: The secondment w i l l be from the Ministry of Citizenship, Native
Community Branch office i n Sault Ste. Marie, t o the Native Community Branch office i n Toronto. The secondee w i l l report t o M r . Jack Chrisjohn, South Area Manager. The contract
w i l l be i n effect from November 20, 1989 t o March 31, 1990, during which time the secondee or the South Area Manager may request a release from the agreement with a one month's
written notice. The secondee w i l l retain his present IDO 1 classification and salary. The Native Community Branch w i l l cover the cost of rental accomodation up t o a maximum of
$895.00 per month t o cover a maximum s i x month period. The cost of relocation t o a maximum of $656.79 w i l l be borne by the North-East and South area budgets of the Native Community
Branch. The performance of the secondee w i l l be assessed a t the completion of the secondment based upon the job description f o r the position and a performance agreement between
the secondee and the South Area Manager. Upon conclusion of the secondment, the secondee w i l l return t o his classified IDO 1 position with the Native Community Branch i n Sault Ste.
Marie.. M r . Kahgee was. compenstated for his actual costs of relocation, i n the amount of $656.79. Paragraph five originally provided for a maximum of $800.00 per month for rental
accomodation. M r . Kahgee t e s t i f i e d that he
5 suggested a figure of $800.00 per month a f t e r reviewing newspaper ads for apartments i n Toronto. However, the apartment that he was able t o locate was $895.00 per month and it
was agreed that the $800.00 figure would be increased t o cover the entire amount for the term of the secondment agreement. M r . Chrisjohn, 'to whom M r . Kahgee reported, is a native,
M r . Kahgee t e s t i f i e d that close t o the time that the term of the secondment was about t o expire he discussed the terms of i t s renewal with M r . Dickson. I n accordance
with the terms of the first secondment agreement, M r . Kahgee had the option of returning t o his former position upon providing one month's written notice or upon the expiry of the
agreement. M r . Kahgee t e s t i f i e d that M r . I. Hilton, who had replaced M r . Chrisjohn as the manager for the south area, on an acting basis, was involved i n discussions surrounding
the renewal of the contract. M r . Hilton is not a native. M r . Hilton's evidence was that the discussions took place between M r . Kahgee and M r . Dickson and that h i s only involvement
was i n the s i g n i n g of the document. M r . Kahgee t e s t i f i e d t h a t M r . Dickson spoke with h i m about the terms of renewal of his secondment agreement. The position
that he was f i l l i n g continued t o be available. M r . Kahgee t e s t i f i e d t h a t M r . Dickson spoke t o him about a
6 renewal of the secondment agreement and informally advised him that because of financial constraints there would be some difficulty i n continuing t o pay him $895.00 per month to
cover the-cost of his rental accomodation and that his allowance would have t o be reduced. There was subsequently a meeting between M r . Kahgee and M r . Dickson where the terms of
a renewal secondment agreement were discussed i n greater detail. M r . Kahgee t e s t i f i e d that M r . Hilton was also a t that meeting, however according t o M r . Hilton's evidence,
he was not present. M r . Hilton suggested that M r . Chrisjohn would have been involved, as M r . Chrisjohn was s t i l l i n the position of manager. We note, parenthetically, that
M r . Hilton's evidence i n t h i s regard is supported by the fact that it was M r . Chrisjohn t o whom M r . Kahgee wrote following the meeting. I n any event, according t o M r .
Kahgee's uncontradicted evidence, M r . Dickson advised him that his accomodation allowance would have t o be reduced during the term of his second secondment agreement. M r . Kahgee
acknowledged i n cross-examination that there were a range of positions taken, extending t o a position taken by Mr. Dickson that no allowance would be paid, t o M r . Kahgee's position
that his entire rental accomodation expense should be paid. Following the meeting and some subsequent discussions between M r . Kahgee and Mr.. Dickson, M r . Kahgee wrote a
memorandum t o M r . Chrisjohn, dated March 28, 1990, requesting time off i n order t o find a new apartment. M r . Kahgee noted i n that memorandum that he had hoped that the Branch
would be able t o pay half his rent but that M r . Dickson had confirmed that the payment would extend only t o $400.00. M r . Kahgee states: While I am grateful for the help, I would
not want t o be treated inconsistently t o other like employees. I am not privy t o the working arrangement with other s t a f f , b u t , I understand that I have been the least demanding
i n terms of rental support or other such concessions. M r . Kahgee t e s t i f i e d that he r a i s e d t h e difficulty of finding an apartment a t that price with M r . Dickson and
Mr. Hilton b u t there was no change i n the decision t o l i m i t payment of his expenses t o $400.00. M r . Kaghee entered into a second agreement, dated April 18, 1990, extending
the terms of his secondment, the provisions of which s t a t e a s follows: 1. The secondment w i l l be from the Ministry of Citizenship, Native Community Branch office i n Sault Ste.
Marie, t o the Native Community Branch office i n Toronto. 2. The secondee w i l l report t o M r . Ian. Hilton, South Area. Manager (acting). 3. The contract w i l l be i n effect from
April 1, 1990 t o March 31, 1991, during which time either the secondee or the South Area Manager may request a release from the agreement with one month's written notice.
4. 5. 6. 7. 8 The secondee w i l l retain his present IDO 1 classification and salary. The Native Community Branch w i l l cover the cost of rental accomodation up t o a maximum of $400.00
per month f o r a maximum of one year. The performance of the secondee will be assessed a t the completion of the secondment based upon the job description for the position and a performance
agreement between the secondee and the South Area Manager. Upon conclusion of the secondment, the secondee w i l l return t o his classified IDO 1 position with the Native Community
Branch i n Sudbury. M r . Kahgee was able t o find an apartment i n Oshawa a t a cost of $500.00 per month. Moving t o Oshawa also involved additional travelling and associated expenses
i n contrast t o M r . Kahgee's previous situation where his apartment was i n downtown Toronto. M r . Kahgee lived i n this apartment for approximately two months. M r . Kahgee sought
an elected position with h i s band i n Southampton and i n anticipation of success and the possiblity of other employment opportunities he gave his landlord one month's notice of his
departure. M r . Kahgee was not successful i n obtaining the elected position, but since he had given up his apartment he commenced commuting from Southampton t o Toronto. He periodically
stayed i n a hotel i n Toronto and used his accomodation allowance t o pay for these costs. M r . Kahgee t e s t i f i e d that he asked M r . Dickson t o authorize h i m t o apply the
$400.00 t o h i s commuting expenses. M r .
9 Hilton t e s t i f i e d that t h i s request was made of him, however it was common ground that the request was granted. M r . Kahgee t e s t i f i e d that he was sometimes l a t
e as a result of his bong commute and that M r . Hilton spoke with him about this matter. M r . Kahgee explained his circumstances t o Mr. Hilton. No formal discipline was imposed. M
r . Kahgee t e s t i f i e d that M r . Hilton suggested that he attempt t o find accomodation a t a hostel or other less expensive f a c i l i t y . M r . Kahgee's evidence suggested
that this discussion took place around the time of the s i g n i n g of the second secondment agreement. M r . Hilton's evidence suggested that the discussion took place l a t e r ,
when M r . Kahgee was travelling t o and from Southampton. He testified that he suggested a boarding arrangement and told M r . Kahgee that people running hostels would be aware of the
availability of t h i s kind of accomodation. M r . Hilton testified that he referred Mr. Kahgee t o another employee who had a boarding arrangement. M r . Hilton also t e s t i f i
e d that he raised the matter with M r . Dickson, as he could see that the lenghty commute was having a negative effect on M r . Kahgee. There was no suggestion that he requested that
the amount of M r . Kahgee's accomodation allowance be reviewed. M r . Hilton stated that his own view was that the solution was a boarding arrangement, which would be covered by M r
. Kahgee's accomodation allowance.
10 During a couple of months during the winter, M r . Kahgee again found accomodation i n Toronto, i n a boarding arrangement. According t o M r . Hilton's evidence, this accomodation
was obtained as a result of his referral of M r . Kahgee t o an employee who had a similar arrangement. ' M r . Kahgee attempted t o arrange for a secondment closer t o Southampton but
was unable t o make those arrangements. He was able t o obtain a contract position elsewhere i n the public service and requested a leave of absence i n order t o take on t h i s position.
M r . Kahgee w a s advised that a leave of absence would not be granted, as the Branch wished t o offer job security t o a person taking on his position. M r . Kahgee then resigned from
his employment w i t h the Branch. There was reference t o the circumstances. of three other, non-native employees of the Branch who had entered into secondment agreements: M s L. O
r r and M r . R. P o t v i n . M r . Kahgee also made reference t o a M r . R. Graham, however there was no substantive information before the Board w i t h respect t o M r . Graham.
M s O r r entered into two secondment agreements and there were some extensions. According to M r . Hilton's evidence, M s O r r worked part-time i n Toronto and part-time i n Thunder
Bay, travelling between the two locations and staying i n hotels while she was i n Toronto.
11 Ms Orr's i n i t i a l secondment agreement, i n which she performed work of a management classification outside of the bargaining u n i t , provided that she would be reimbursed
for rental accomodation up t o a maximum of $1350.00 a month, t o be charged as a travel expense. This secondment agreement covered the period January 19, 1990 t o March 31, 1990. I
n her second secondment agreement, for the term May 7, 1990 t o November 2, 1990 it was provided that Ms O r r would work i n a bargaining u n i t classification, above the level of
the position she held. That secondment agreement provided that M s O r r would be reimbursed for a l l expenses associated with her travel t o Toronto i n order t o carry out her secondment
duties. M r . Potvin's secondment agreement was for the term November 26, 1990 t o March 31, 1991. M r . Kahgee t e s t i f i e d that M r . Potvin periodically performed work i n Toronto
prior t o November, 1990, however there was no evidence with respect t o the arrangements for M r . Potvin's expenses during that period. M r . Potvin's secondment also involved the
assumption of managerial duties i n 'a classification outside the bargaining u n i t . M r . Potvin was required t o function one week from the Thunder Bay office and one week from the
Toronto. office. M r . Potvin stayed i n hotels while he was i n Toronto. The secondment agreement provided that M r . Potvin would be compensated for rental accomodation up t o $900.00
per month and for return airfare from Thunder Bay t o Toronto once
12 every two weeks. The Ministry's policy on relocation expenses states that it: "applies t o c i v i l servants and, a t the discretion of the deputy head, may apply t o new appointees,
secondees or public servants on a case-by-case basis". The policy provides the following with respect t o temporary relocations: In situations where commuting or temporary living arrangements
are p r a c t i c a l , the ministry may reimburse the cost of these arrangements i n lieu of relocation expenses. T h i s arrangement must be by mutual agreement with the employee.
Travel expenses for employees separated from their families' are also reimbursable. There is a manager's guide t o relocation expenses which states the following w i t h respect t o
relocation of new appointees, secondees and public servants: In the relocation of an appointee, secondee or public servant, relocation expenses, i f any, are reimbursed a t the discretion
of the deputy head and are t o be negotiated w i t h the individuals before they are authorized to relocate a t government expense. The negotiations should be undertaken during the selection
phase of the staffing action. Assistance should not be offered as a matter of course it should be provided only i f it is considered necessary t o a t t r a c t the individual. The manager's
guide provides for three types of relocations: employer requested relocations, employee requested relocations and relocations of new appointees, secondees and public servants. The policy
defines employer
requested relocations as including a relocation resulting from a job competition. I n an employer requested relocation the employee is t o be reimbursed "the actual and reasonable expenses
“. With respect t o an employee requested relocation the policy s t a t e s t h a t “... any assistance is a t the discretion of the deputy head". The manager's guide further s t a t
e s t h a t an employee ''should" be provided with a copy of the guidelines. M r . Hilton t e s t i f i e d that he was not aware of the policy a t the time of h i s involvement i n
t h i s matter. M r . Kahgee testified that he "did not recall'' being provided with the policy. We w i l l deal f i r s t with the issue of timeliness. There was no dispute that the
provisions of the Collective Agreement respecting timeliness are mandatory and that the effect of a grievance not being processed i n a timely manner is f a t a l t o the grievance.
The relevant provision of the Collective Agreement with respect t o when a grievance must be raised is Article 27.2.1, which provides as follows: An employee who believes. he has a complaint
or a difference shall f i r s t discuss the complaint or difference w i t h his supervisor within twenty ( 2 0 ) days of f i r s t becoming aware of the complaint or difference. M r
. Knight submitted that the facts upon which M r . Kaghee bases his claim were indisuputably within his knowledge a t
14 the time that he wrote the March 28, 1990 memorandum t o M r . Chrisjohn and, accordingly, his grievance must be found to be untimely an be deemed t o be withdrawn i n accordance
with the provisions of Article 27.13 of the Collective Agr e eme n t It is clear that M r . Kahgee had some knowledge of the facts which form the basis of his grievance a t the time
of his March 28, 1990 memorandum, and we agree with M r . Knight. that M r . Kahgee's evidence about the precise nature of the additional information he received and when he received
it subsequent t o that time was somewhat vague. However, M r . Kahgee did not have access t o specific information about the arrangements with other employees. H i s evidence that other
employees provided him with further information with respect to arrangements with other employees when it became known that he was commuting from Southampton is credible. In a situation
where a l l of the relevant f a c t s are not readily available t o an employee and i n which he gradually becomes aware 'of relevant information. it is d i f f i c u l t t o pinpoint
precisely when the employee should be fixed with the knowledge of the relevant facts. Ms Reaume referred u s to Pierre, 492/86 (.Verity) (upheld by the Divisional Court i n a decision
dated September 5, 1990) i n which it is concluded that there is a subjective component t o Article 27.2.1 and that the time l i m i t s commence only upon the
15 grievor being aware of a basis for complaint under the Collective Agreement. There was no issue raised by the facts of t h i s case i n relation t o M r . Kahgee's knowledge of his
rights under the Collective Agreement. Rather, the issue is his knowledge of the factual basis for his complaint. We are not prepared t o accept Mr Knight's submission that we should
conclude that M r . Kahgee was i n f u l l possession of the relevant information as early as March 28, 1990. On the evidence before us, we are satisfied that there was some evolution
of awareness on the part of M r . Kahgee w i t h respect t o the treatment of other employees, specifically M s O r r as it was her situation that arose a t the relevant time. We are
not convinced that we should conclude that t h i s knowledge crystallized more than twenty days prior t o the grievance being brought forward. Accordingly, we reject the Employer's preliminary
objection based on timeliness. We t u r n now t o the allegation that the Employer has failed t o administer i t s policy i n accordance with an obligation pursuant t o Article 4.5 or,
alternatively, that the Employer has failed t o apply the policy and/or deal w i t h M r . Kahgee i n accordance w i t h an obligation t o act fairly, reasonably and i n good f a i t
h i n administering the Collective Agreement.
16 As previously noted, it was the Employer's position that Article 4.5 applies i n the case of the f i l l i n g of vacancies and new positions while it was the Union's position that
this provision also applied t o secondments. In the alternative, it was the Union's position that i n fact there was a vacancy that M r . Kahgee f i l l e d and that the Employer should
not be allowed t o avoid i t s obligations pursuant t o Article 4.5 by virtue of i t s failing t o post a vacancy as it ought t o have. We w i l l deal with the Union's alternative argument
first. There is no suggestion from the evidence that Mr'. Kahgee's f i l l i n g of the position by secondment was challenged by the Union as improper. The evidence before us does not
establish that a vacancy existed and that the position was improperly f i l l e d as a secondment. Accordingly, we cannot accept M s . Reaume's position i n this regard. A s well, we
cannot accept M s . Reaume's submission that Article 4.5 of the Collective Agreement encompasses secondments as well as vacancies and new positions. The heading of the Article, as well
as the substantive provisions of Article 4.1, 4.2 and 4.3 all relate specifically t o the posting and f i l l i n g of vacancies and new positions. Secondments are not specifically referred
to. Given this context, we are not prepared t o conclude that Article 4.5 encompasses secondments.
17 Both Ms Reaume and Mr. Knight made extensive submissions with respect to the duty of fairness and its application to the facts of this case. reference to the seminal cases in this
area, including Counsel made Haladay, 94/78 (Swan), Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1981) 1 D.L.R. (3d) 684, Council
of Printing Industries of Canada and Toronto Printing Pressman Assistants' Union No. 10 (1983) 149 D.L.R.(3d) 53 and Municipality of Metropolitan Toronto and Canadian Union of Public
Employees, Local 43 (1990) 69 D.L.R. (4th) 268 and Bosquet 541/90 (Gorsky). It was the position of Mr. Knight that any claim of fairness or reasonable contract administration must be
based on a specific provision of the collective agreement. Ms Reaume argued that the effect of this Board's decision in Bosquet is that such a duty exists whether or not it relates to
management's actions with respect to a particular provision of the collective ag r eeme nt After careful consideration of this matter it is our conclusion that even if we were to accept
Ms. Reaume's submissions with respect to the grievor's right to challenge the manner in which the Employer has applied its relocation policy we are unable to conclude that the Employer
has failed to pay Mr. Kahgee relocation expenses
18 i n accordance with that policy o r t h a t it has dealt with M r . Kahgee i n a manner that contravenes any duty of fairness or reasonable contract administration that may exist.
The Employer's relocation expenses poiicy specifically deals with the matter of secondments, and, as the excerpt from the policy reproduced supra indicates, it provides that payment
of relocation expenses for secondees is discretionary. As Ms Reaume emphasized, the policy refers to "minimiz[ing] the detrimental effect on the transferred employee...". However, the
policy i s clear t h a t the payment of such expenses is discretionary. The manager's guide t o relocation expenses confirms the discretionary nature of the policy and goes on t o provide
that; ''assistance shall not be offered as a matter of course...". For the term of his first secondment agreement, M r . Kahgee was reimbursed for the entire cost of his rental accomodation
as well as his costs of moving t o Toronto. While h i s allowance was reduced for the term of the second secondment agreement, the Employer did exercise i t s discretion i n favour of
M r . Kahgee i n terms of providing him with a $400.00 monthly payment. M s Reaume referred t o the fact t h a t the manager's guide t o relocation expenses provides that the employee
19 "should" be provided w i t h the guidelines for relocation expenses. M r . Kahgee's evidence was that he "did not recall'' whether or not he was provided w i t h the guidelines. M
s Reaume submitted that although M r . Kahgee signed the second secondment agreement providing for a reduction i n his accomodation allowance, his acceptance of those terms cannot be
considered t o be a voluntary acceptance, given the inequality of bargaining positions of the p a r t i e s . On this point, Ms Reaume referred t o Lloyds Bank Ltd v Bundy [1974] 3 A
l l ER 757 (Court of Appeal) i n which the court set aside a guarantee and mortgage from an elderly farmer i n favour of a bank. The basis for that decision is set out by Lord Denning
a t p. 765 as follows: the English law gives r e l i e f t o one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration
which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled w i t h undue influences
or pressures brought t o bear on him by or for the benefit of the other. It was M s Reaumels submission that the inequality i n the bargaining positions of the p a r t i e s , the fact
that it appeared that the relevant guidelines were not provided t o M r . Kahgee and that he was not advised t o seek Union representation i n connection with the negotiations for the'
second secondment agreement should lead us t o conclude that M r . Kahgee's agreement t o a reduced allowance cannot be
21 discretionary, it is d i f f i c u l t t o find any prejudice resulting from a failure t o provide M r . Kahgee w i t h the policy. I n our view, the terms of the secondment agreement
cannot be characterized as unconscionable. The accomodation allowance was not insignificant i n amount. While it clearly was not adequate t o cover the entire cost of an apartment i
n Toronto, t h i s kind of expense is normally one for which an individual employee assumes entire responsibility. We t u r n now t o the issue of whether payments t o other employees
i n excess of those paid t o M r . Kahgee supports the conclusion that M r . Kahgee was treated unfairly or unreasonably. T h i s issue is related t o the allegation that the grievor
has been discriminated against on the basis of race or ethnic origin contrary t o Article A.1 of the Collective Agreement. I n support of her submission w i t h respect t o the discrimination
allegation Ms Reaume emphasized M r . Kahgee's evidence that M r . Hilton suggested that M r . Kahgee attempt to f i n d accomodation i n a hostel. It was submitted that such a suggestion
would not have been made t o a non-native and, indeed, the Employer entered into arrangements w i t h two non-native employees which were more generous w i t h respect t o payment for
accomodation expenses than those paid t o M r . Kahgee.
20 considered t o be voluntary and should be set aside. In her submission, the terms of the second secondment agreement are unconscionable. We are unable t o accept M s Reaume's submission
i n t h i s regard. In our view, the fact of t h i s case are not comparable to those i n Bundy. M r . Kahgee is clearly an intelligent and sophisticated individual and we cannot accept
that he was taken advantage of in' any way i n the negotiations surrounding his second secondment agreement. It is apparent that he represented himself quite capably i n those negotiations'
and was able t o convince M r . Dickson t o move from the position of no additional compenstation for expenses t o a monthly payment of $400.00. Moreover, M r . Kahgee could simply have
returned t o h i s former position, e i t h e 'at the expiry of his first secondment agreement or with one month's notice during the term of the second secondment agreement. There is
no express requirement i n the Collective Agreement or i n the relocation expenses policy that requires that an employee negotiating a secondment agreement be advised of a right t o
Union representation i n connection w i t h such negotiations. The manager's guide states that an employee "should" be provided w i t h the relocation expenses policy. However, i n the
particular circumstances of t h i s case, involving a secondment, where the payment of relocation expenses is
22 While M s Orr's compensation i n connection w i t h her secondment was more generous than that paid t o M r . Kahgee, it is clear from M r . Hilton's evidence and from the documentary
evidence relating t o M s O r r ' s secondments that her situation was considerably different from M r . Kahgee's. M s O r r was either i n a management position or a t a higher level
bargaining u n i t position and she was required t o work part of the time i n Thunder Bay and part of the time i n Toronto. While M s . O r r ' s assignments ultimately resulted i n
a fairly lengthy period of secondment, her situation is unlike that of M r . Kahgee, where, from the outset, the term of the second secondment agreement was t o be for one year. M r
. Potvin' s secondment agreement provided for approximately the same amount of compensation as that received by M r . Kahgee during his first secondment agreement. T h i s agreement
was for a period of about f o u r months. It also involved the assumption of management duties. Rather than receiving an allowance, as M r . Kahgee did, M r . Potvin and M s O r r were
on "travel status", which required them t o submit their expenses, for which they were reimbursed, up t o the 'level agreed to. While, as M s Reaume emphasized, we did not hear evidence
from M r . Dickson w i t h respect t o why he f e l t it was necessary to reduce the compensation paid t o M r . Kahgee while compensating M s O r r .and M r . Potvin more generously,
23 it is our view that the circumstances of the secondment agreements involving M s O r r and M r . Potvin clearly involve circumstances sufficiently d i s t i n c t from the circumstances
of M r Kahgee that an inference of unfair or unreasonable treatment and/or discrimination does not arise. Aside from the higher level of duties involved i n both these situations, circumstances
which would reasonably provide a justification for greater benefits, the long-term assignment of M r . Kahgee t o one specific location a t the outset of his second secondment agreement
clearly d i s t i n g u i s h e s his situation from that of M r . Potivin and M s O r r . It is clearly reasonable for the Employer t o expect an employee on a long-term assignment
t o one location t o arrange for long-term accomodation that is less expensive than hotel accomodation which is reasonably provided t o employees who are periodically required t o work
a t a different city for a shorter period. As our views as set out above would suggest, we are not convinced that the allegation of discrimination based on race or ethnic origin contrary
t o Article A.1 has been established. T h i s is not a case of similar or comparable cases being treated differently such that an inference of discrimination arises, such that we could
conclude that M r . Kahgee was discriminated against on the basis of race or ethnic origin i n connection w i t h his accomodation expenses.
24 W i t h respect t o the evidence relating t o the conversation between M r . Kahgee and M r . Hilton i n which a hostel was referred to, we note that t h i s evidence was somewhat
contradictory. It is our conclusion, on a balance of probabilities, that this discussion took place some time after the second secondment agreement was entered into. It is apparent from
the evidence that M r . Hilton had a marginal role i n the negotiation of the second secondment agreement and that i t s was M r . Dickson who was primarily involved. A s previously
noted, M r . Dickson is native. While the fact that the person w i t h primary involvement i n this matter is also native does not mean that M r . Kahgee was not discriminated against
on the basis of his race or ethnic origin, t h i s matter does cause u s t o question the likelihood of this allegation. Considering a l l of the evidence, we are unable t o conclude
that a violation of Article A.1 of the Collective Agreement has been established. M s Reaume referred us t o some decisions dealing w i t h the payment of expenses. We have reviewed
these decisions, however we have not addressed them i n t h i s decision as we did not f i n d them t o be directly helpful i n terms of the matter before us, due t o the particular
factual situations and contract language i n those cases.
25 .It was apparent from M r . Kahgee's evidence that there were a number of matters relating t o his employment w i t h the Native Development Branch that caused him concern and unhappiness.
These matters were not explored i n f u l l i n the evidence before us and an assessment of the legitimacy of a l l those concerns is a matter beyond the scope of t h i s proceeding.
After careful consideration, it is our conclusion that a violation of the Collective Agreement has not been established i n this instance and accordingly, the grievance is dismissed.
Dated a t Toronto this 9th day of July 1992 S . L . Stewart -Vice Chairperson Jame Carruthers J. Carruthers -Member A. Stapleton Member