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HomeMy WebLinkAbout1989-0169.Bradley & Lowe.89-11-02 ONTARIO EMPLOYS DE ~ COURONNE CROWN EMPL 0 YEES DE L ~N ~ ~0 GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WES~ TORONTO, ON~ MSG 1~ - S~ 21~ TELEPHONE/T~L~PHONE 18~ RUE DUNDAS OUE$~ TORONTO, ~N~ M5G 1~ - BUR~U 21~ ~I~ 5~-0~8 169/89 IN T~E ~ATTER OF AN ARBITRATION Under T~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TBE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Bradley/Lowe) Grievor - and -. The Crown in Right of On[ario (Ministry of Revenue) Employer Before: R.L. Verity Vice-Chairperson I. Thomson Member G. Milley Member For the Grievor: C. Dassios Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: D. Daniels Labour Relations Officer Ministry of Revenue aearin~: August 8, 1989 Page 2 DECISIO'N In this matter, the grievors John Bradley and Robert Lowe allege wrongful denial of their meal allowance claims for the week of January 23-27, 1989. This case is said to involve an issue of first impression for the Grievance Settlement Board; namely, as to what constitutes a reasonable meal claim. The relevant provisions of Article 17 of the Collective Agreement, entitled "Meal Allowance" reads: 17.2.1 Cost of meals may be allowed only: 17.2.2 If during a normal meal period the employee is travelling on government business other than: (a) on patrol duties, except as provided under subsection 17.2.3, or (b} within twenty-four (24) kilometres of his assigned headquarters, or (c) within the metropo)itan area in which he is normally working; 17.3 Gratuities and taxes are to be included in the actual cost of meals claimed. 17.4 The total cost of meals for each day is to be shown. 17.5 Before approving claims for meals, the branch head should be satisfied that the charges are reasonable for the locality. An agreed statement of facts was submitted as follows: 1. THE GRIEVORS ARE PROPERTY ASSESSORS, CLASSIFIED AT THE LEVEL OF PROPERTY ASSESSOR 3, EMPLOYED BY THE MINISTRY OF REVENUE IN ITS TIMMINS REGIONAL ASSESSMENT OFFICE. 2. EFFECTIVE DECEMBER l~, 1988, THE PARTIES (O.P.S.E.U AND THE MINISTRY OF REVENUE) ENTERED INTO A LOCAL MINISTRY AGREEMENT Page 3 CONTAINING THE FOLLOWING PROVISIONS: 5.1 WITHIN THE FRAMEWORK OF ARTICLE )7 OF THE WORKING CONDITIONS AGREEMENT, MEAL ALLOWANCES MAY NOT EXCEED $28.50 WITHOUT RECEIPTS. BASED ON ACTUAL OUT-DF-POCKET E~PENDITURES INCURRED IN THE PERFORMANCE OF WORK DUTIES, EMPLOYEES MAY CLAIM UP TO THE FOLLOWING AMOUNTS WITHOUT RECEIPTS: BREAKFAST $ 6.25 LUNCH $ 7.25 DINNER $15.00 $28.50 WHERE IT IS SUSPECTED THAT THERE MAY BE AN ABUSE OF THE MEAL ALLOWANCES, MANAGEMENT MAY REQUIRE AN EMPLOYEE TO SUBMIT RECEIPTS FOR AMOUNTS LESS THAN THOSE LISTED. 5.2 NOTHING IN ARTICLE 5.1 IN ANY WAY LIMITS MANAGEMENT'S RIGHT TO DETERMINE THE REASONABLENESS OF ALL CLAIMS. 3. THE PREVIOUS ALLOWABLE DAILY MEAL EXPENSE WITHOUT RECEIPTS HAD BEEN $27,50. THE LOCAL AGREEMENT WHICH ADDRESSES THIS ISSUE HAS BEEN NEGOTIATED ON AN ANNUAL BASIS. 4. PROPERTY ASSESSORS REGULARLY CLAIM FOR TRAVEL RELATED EXPENSES ON A WEEKLY BASIS. HOWEVER, A GIVEN ASSESSOR MAY NOT WORK IN THE FIELD IN EACH WEEK. 5. ASSESSORS tN THE TIMMINS OFFICE ARE PROVIDED WITH CASH ADVANCES TO COVER ESTIMATED FIELD TRAVEL EXPENSES. EXPENSE CLAIMS ARE SUBMITTED TO RECONCILE AND ADJUST THESE ADVANCES. 6, MR. BRADLEY'S CLAIM WAS ONE OF THE SEVEN CLAIMS SUBMITTED WHICH INCLUDED RECEIPTS. HIS CLAIM WAS INVESTIGATED. MR. LOWE'S CLAIM WAS SUBMITTED APPROXIMATELY TWO WEEKS SUBSEQUENT TO MR. BRADLEY'S DUE TO HIS (Mr. LOWE'S) ABSENCE FROM THE OFFICE. HIS CLAIM ALSO INCLUDED RECEIPTS, EXCEEDED THE NEW LIMITS FOR CLAIMS WITHOUT RECEIPTS, AND COVERED THE SAME WEEK (ENDING JANUARY 27, 1989). HIS CLAIM WAS ALSO INVESTIGATED UPON ITS SUBMISSZON. 7. MR. BRADLEY'S CLAIM INCLUDED A $16.00 DINNER CLAIM FOR JANUARY 23, A $)1.75 LUNCH CLAIM FOR JANUARY 26, AND A $16.75 CLAIM FOR DINNER ON JANUARY 26. "CHITS" WERE SUBMITTED AS RECEIPTS FOR ALL THREE MEALS. THE BILL FOR THE Page 4 JANUARY 26 DINNER WAS OBTAINED FROM THE STEAK VZLLA RESTAURANT IN NEW LISKEARD BY MANAGEMENT. THIS BILL INDICATED THAT $4.50 OF THE BILL WAS FOR TWO BEERS. MR. BRADLEY INFORMED MANAGEMENT DURING A MEETING TO INVESTIGATE THE REASONABLENESS OF HIS CLAIMS THAT THE $11.75 JANUARY 26 LUNCH CLAIM REPRESENTED A $6.95 BUFFET PLUS ONE BEER PLUS GRATUITY. NO FURTHER INFORMATION WAS OBTAINABLE REGARDING THE JANUARY 23 DINNER CLAIM. THIS INVESTIGATION WAS CONDUCTED IN PART BY MR. AL YOUNG (MR. BRADLEY'S VALUATION MANAGER} AND MR. DON WEB8 (REGIONAL ASSESSMENT COMMISSIONER) 8. MR. BRADLEY, ALONG WITH OTHER ASSESSORS WHOSE CLAIMS WERE FOUND TO BE UNREASONABLE BY MR. WEBB, WAS GIVEN AN OPPORTUNITY TO SUBMIT REVISED MEAL CLAIM FORMS FOR REASONABLE AMOUNTS. MR. BRADLEY CHOSE NOT TO DO SO. NO REIMBURSEMENT OF THE OUTSTANDING ADVANCE ISSUED TO MR. BRADLEY HAS BEEN SOUGHT PENDING RESOLUTION OF HIS GRIEVANCE. 9. MR. LOWE'S CLAIM INCLUDED A JANUARY 26 DINNER CLAIM FOR $21.38 MAKING HIS DAILY CLAIM $34.38 FOR THAT DAY. A CHtT WAS SUBMITTED AS A RECEIPT FOR THIS MEAL. THE CORRESPONDING BiLL FOR THIS CHIT WAS OBTAINED FROM THE STEAK VILLA RESTAURANT IN NEW LISKEARD. THE BILL INDICATED THAT MR. LOWE HAD THE $17.95 "STEAK DIANE" (PLUS TAX AND GRATUITY). A MENU FROM THE STEAK VILLA RESTAURANT WAS OBTAINED BY MR. YOUNG (ATTACHED AS EXHIBIT "A"). MR. LOWE WAS INFORMED THAT THIS EXPENSE CLAIM FORM WOULD NOT BE APPROVED AS THE JANUARY 26 DINNER CLAIM WAS FOUND TO BE UNREASONABLE. MR. LOWE WAS THEN GIVEN AN OPPORTUNITY TO RESUBMIT HIS CLAIM FOR A REASONABLE AMOUNT. MR. LOWE DECLINED TO DO SO. NO ATTEMPT TO RECOVER THE OUTSTANDING AMOUNT ADVANCED TO MR. LOWE HAS BEEN MADE BY THE MINISTRY PENDING THE RESOLUTION OF THIS GRIEVANCE. lO. THE GRIEVANCES OF MR. BRADLEY AND MR. LOWE REQUESTED APPROVAL OF THEIR DENIED MEAL CLAIMS. The grievors' travel)lng expenses submitted (Exhibits 5 and 8 respectively) included the following meal allowance for the week ending January Page 5 27, MEALS TOTAL JOHN BRADLEY: JAN. 23 I~- L- $ 7.25 9- $ t6.00 $ 23.25 JAN. 24 !i} $ 28.49 $28.49 JAN. 25 D-B-} L- $ 28.47 $ 28.47 JAN. 26 B- $ 3.75 L- $ 1t.75 O- $ 16.75 $ 32.25 JAN. 27 I~~, D- $ 13.44 $125.90 ROBERT LOWE: $ 22.25 $ 28.50 $ 28, 50 JAN. 25 D-B-} L- $ 28.5O $ 28.50 JAN. 26 8- $ 6.00 L- $ 7.0O D- $ 21.38 $ 34.38 $13.50 D- $ 13.50 $121.13 Page 6 The oral testimony can be briefly summarized. On January 26, the grievors ate lunch together at a local restaurant in Haileybury and supper at the Steak Villa Restaurant in New Liskeard. At the hearing, John Bradley testified that he spent $32.25 for three meals on January 26 because he had one beer at lunch and two beers at dinner. The meal claim on that date was $4.65 in excess of the per diem meal allowance without receipts. However, as indicated in the agreed statement of facts, receipts or "chits"'were submitted for all meals in excess of the limit specified by the local agreement. According to Mr. Bradley's evidence, he was told by the Commissioner that alcoholic beverages were not allowed on expense account claims. He replied that he was unaware of that policy and that in his 20 years of employment with the Ministry he never had an expense claim rejected. Mr, Bradley acknowledged that he drove a Ministry vehicle during the week in question; however, he maintained that he did not drive after supper on January 26. John Bradley is a local union Vice-President. Mr. Bradley testified that he was asked by Commissioner Webb if there had been a union protest against the recently renegotiated meal allowance guidelines. The grievor denied knowledge of any protest. Robert Lowe testified that he paid $38.00 for dinner on January 26, but submitted a claim for only $21.38. He stated that he did not consider claiming reimbursement for any part of a' litre of house wine because the total cost would have amounted to an excessive claim. Accordin§ to his evidence, he Page 7 regularly eats five to six meals a day and eats steak regularly. Donald Webb was the only witness called by the Employer. At the relevant time he was Regional Assessment Commissioner for the District of Cochrane-Temiskaming at the Timmins Regional Office. Mr. Webb testified that he suspected Union dissatisfaction when during the week of January 23-27, 1989, seven of eight assessors in the field submitted meal expense claims which required receipts. Mr. Webb authorized an investigation by contacting all restaurants from which the grievors had obtained receipts. All itemized bills were reviewed together with copies of relevant menus. In addition, all assessors were interviewed by Mr. Webb and were requested to submit revised expense accounts within the guidelines. Only the grievors failed to comply with the Commissioner's request. Eventually both Bradley's and Lowe's meal allowance claims were denied. Mr. Bradley's claim was denied for two reasons: l) the amounts claimed were excessive and 2) the claim included amounts for alcoholic beverages. Mr. Lowe's claim was denied on the basis that the charges were unreasonable considering the options available on the menu. In Commissioner Webb's opinion neither grievor offered any explanation to justify exceptional circumstances. The Union contended that the employer failed to excerise its discretion under Article 17.5 in a reasonable manner. In particular, Mr. Dassios a~gued that the Bradley expense claim denial was based on a rigid adherence to an unwritten and unreasonable policy against alcohol consumption and that no serious Page 8 attempt had been made to consider either grievor's personal circumstances. support, the Union referred the Board to the following general authorities: O.P.S.E.U. (H. O'Brien) and Ministry of Correctional Services, 1157/86 (Gandz); O.P.S.E.U. (M. ¥ouden) and Ministry of Government Services, 577/86 (Draper); and O.P.S.E.U. (J. S. Sahota} and Ministry of Correctional Services, 2454/87 (Verity). The Employer argued that management's actions in denying both claims wer~ reasonable in the absence of special circumstances to justify abnormal or unusual expense claims. Mr. Daniels maintained that the Ministry policy, regarding alcohol not being an appropriate expense, is reasonable taking into account such general concerns as health and safety, drinking and driving, the perception of the general public, insurance and W.C.B. benefits. Under Article 17.5 of the Collective Agreement, management has the discretion to approve or deny meal expense claims. The sole criteria for approval is that the disbursements "are reasonable for the locality". This appears to be a recognition by the parties that the price of an avera§e meal will vary according to locality. On the particular facts of these grievances, there was no written Ministry policy for the guidance of managers as to what constitutes a reasonable meal expense claim. The local agreement between the Ministry and the Union dated December 18, 1988, in Article-5.1 provides some specifics in that meal allowances may not exceed $28.50 per day without the production of receipts. Further, the parties have agreed that the per diem rate of $28.50 includes: Page 9 Breakfast $ 6.25 Lunch $ 7.25 Dinner $15.00 There is a further provision in Article 5.1 that Where there is a suspicion of meal allowance abuse, the employee may be required to submit receipts for actual out-of-pocket disbursements for amounts "less than those listed" Article 5.2 provides that Article 5.1 does not limit man~gement's right "to determine the reasonableness of all claims". Clearly, Article 17.5 of the Collective Agreement gives the employer broad discretionary powers to approve meal claims a fact that is recognized by the Union in Article 5.2 of the local agreement. However, it cannot be said that the discretion is unfettered. The Grievance Settlement Board has the power to review the exercise of management's discretion under Article 17.5 to ensure that the employer did not act in a manner that is arbitrary, discriminatory or in bad faith. tn the instant matter, the evidence was unsatisfactory as to the sequence of relevant events and what actually transpired during the grievors' interviews with Commissioner Webb. There is no disupte that the Employer conducted an investigation of suspected meal claim abuse. Clearly, the Employer has that right under Article 5.1 of the local agreement. On the evidence adduced, the Board cannot conclude that the Ministry acted in bad faith or in a discriminatory manner in denying either expense claim. Page l0 Nowever, on all the evidence, the Board is satisfied that Mr. Bradley's claim was rejected in an arbitrary fashion, primarily because of the inclusion of the cost of three beers. Apparently there is no w~itte~ M~ist~y ~licy ~isall~i~§ any such claim for re-imbursement. Similarly, there was no evidence that Mr. Webb told Mr. Bradley of a blanket alcohol prohibition until the time of his first interview following submission of the disputed expense claim. We accept Mr. Bradley's evidence in that regard. In these particular circumstances, rigid adherence to an unwritten policy is incompatible with a proper exercise of discretion. In denying Mr. Lowe's expense claim, the Employer, we think, acted arbitrarily. His claim was rejected for the sole reason that the charges were excessive in relation to the options available on the menu. In rejecting the claim, the Employer made no effort to consider possible alternatives. On January 26, 1989, Mr. Lowe's expense claim did exceed the guidelines by some $5.88. However, if the January 26 meal claim is reviewed together with all meal claims incurred during the five day field assignment, the total claim cannot be said to be unreasonable. In these particular circumstances, the Employer should have considered relevant individual factors such as the grievor's past history in submitting meat claims, the duration of the field assignment in question, the total meal claims submitted during the assignment, the fact that the grievor had dinner at an average restaurant in the area, and the fact that the conspiracy theory was without merit. Page In the result, the grievances shall succeed on the finding that the Employer did not properly exercise its discretion under Article 17.5 of the Collective Agreement. Since the monies have already been paid to the grievors in the form of an allowance, we make no order as to compensation. DATED AT Brantford, Ontario, this 2nd day of November , A. D., 1989. R. L. VERI)¥, -V~ce-Chairpersan ON - Member J~~.,/"_~x~.~ (Addendum attached) G MILLEY Member OPSEU (Bradley/Lowe) ADDENDUM I have joined with my colleagues in this decision, albeit, some- what reluctantly. In the case of both grievors my reluctance stems more from the alleged reasons for the overcharges than from the amounts itself. In Mr. Bradley's case, the claim included an amount for alcoholic beverages. However, there appears to be no written policy dis- allowing such a claim and management's decision, absent such a policy is described as rigid and indiscreet. This description lacks, perhaps, something in the way of realism. The Employer expressed concern about such matters as Drinking and driving, Insurance, Health and safety and the perception of the general public to an on-duty employee. Surely, this point is well taken. Notwithstanding an absence of written policy, the employee has a responsibility to conduct himself in a reason- able manner. It can hardly be said that to drink and drive while on duty, to whatever extent, especially when meeting the public, leaves a good impression or is acceptable conduct. As for Mr. Lowe, no one can fault his preference for eating five or six meals a day, a iitre of wine, and steak regularly. However, he no doubt recognizes that such consumption is in excess of what the parties consider reasonable and, as such, he would be expected to assume the additional~ost himself.