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HomeMy WebLinkAbout1989-0812.Zonni & Hardy.91-08-01 ONTARIO EMPLOYL~S DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUfTE 2tOO, TORONTO, ONTARJ~D. MEG ?~,,~ TELEF~OIVE/TE~F~ONE.. (4t$) ..7----~- t38~ 180, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO [ONTARIOJ. M5G 1Z8 FAC$IIUfILE/Tlft.-g'COPlE : · (416j 326-1396 812/89, 1472/89 ~N THE ~TTER OF Under THE CROWI~ R,v.P~ES COLLECTIVE~B~IN~N~ ~CT Before CUPE (Zonni/Hardy) Gri evor The Crown in Right of Ontario (Workers' Compensation Board) Employer BEFORE: B. Kirkwood Vice-Chairperson T. Browes-Bugden Member I. Cowan Member FOR THE B, Toop GRIEVOR National Representative CUPE Local 1750 FOR THE R. Stewart EMPLOYER Counsel Winkler, Filion & Wakely .. Barristers & Solicitors HEARING April 25, 1991 D~CZSZO~ The Union claimed that the Board violated articles 24.04 and 24.05 of the Collective Agreement by its failure to reimburse the grievors for kilometrage costs incurred by them in attending a training session at the Downsview Rehabilitation Centre on June 6, 1989 in the case of Mr. Hardy and June 8, 1989 in the case of Mr. Zonni. It was agreed by counsel for the parties that the evidence as given by the grievor Dennis Hardy was representative of the evidence of Mr. Zonni, with one exception which we have referred to in this decision. The grievors were Rehabilitation Counsellors. As their job was to find gainful employment for injured workers with either their prior Board or with other .employers the grievors had to have a car to perform their Job. They spent one day a week in their office at 2 Bloor Street East and the balance of their time on the road. From 1982 to 1986, Mr. Hardy was paid a kilometre allowance for his attendance at training sessions and meetings which were held for the most part outside his normal work base, once a year. In 1989, the Board changed its computer software to improve its system for the payment of benefits to injured workers. 'In order that. all its employees would be able to use the new procedures, the Board held a training session for both their bargaining unit and non-bargaining unit employees in eight of their Integrated Service Units (ISU). As there were approximately 98 to 150 employees involved in each unit and there was little time to implement the system, the Board held the training session at the Downsview Rehabilitation Centre. Due to the numbers of employees involved in the training session, the Board decided not to pay for any kilometres travelled to the transportation, but provided alternative arrangements for public transportation. A memorandum dated May 24th, 1989, was.forwarded to all staff and members of the ISU which included both bargaining unit and non bargaining unit staff advising them of the transportation arrangements. The memo stated: As you are all aware, WBS training for ISU staff will be commencing on June 5, 1989, at the DRC. For the convenience of staff, arrangements are being made for charter bus service from Wilson subway station. As bus will leave the Wilson subway station at 8:30 a.m. each morning and transport staff to'the DRC. The bus will also transport staff from DRC back the Wilson subway stop at the end of the day. Staff will be asked to make their own .arrangements for transportation between their home and the Wilson Subway Station. While the Board will reimburse staff for return subway fare, mileage cost will not be paid. For those individuals who opt to drive to DRC, mileage costs will not be paid, however, free parking is available. Lunch will be provided at DRC at no cost to staff. Mr. Brown, the grievors' supervisor, testified that management staff advised employees that there would also be taxis available for groups who had missed the bus. Mr. Hardy did not recall whether or not he was given the notice. The Union agreed that Mr. Zonni received this notice. After considering the procedure that was followed by the Board, Mr. Brown's undisputed testimony that he spoke to the grievors on two separate meetings prior to the training session, explaining the situation, and Mr. Hardy's testimony that he submitted his claim for this particular kilometre charge separately from his usual claims as he expected his claim to be rejected, we find on the reasonable balance of probabilities that Mr. Hardy, did have notice of the transportation arrangements. On the days of the training sessions, the grievors took their cars and submitted a claim for the kilometres covered as they had done in previous years, and their claim was denied. The Union's counsel submitted that the Collective Agreement incorporated the expense policy in Article 24.04. He argued that the collective agreement was ambiguous and past practice could be used as an aid to interpretation, as the article did not determine when an individual could use a car and it made no reference to training sessions. The Union's counsel argued that the Board was bound by article 24.04(a) of the collective agreement to continue its past practice. Alternately, he submitted that the Board was estopped from changing its practice until the next Collective Agreement. was signed. The Board's counsel submitted that it was inherent in the exercise of management's rights in the collective agreement that management reserve the right to choose the most appropriate means of transportation. The Board considered fairness, efficiency and economy before deciding that alternative transportation would be 'made and specifically precluded the claim for kilometrage for attendance at this training session. The Board's counsel argued that the collective agreement was not violated as article 24.05 applied only if the employee was required to use his car. In this case, he submitted that the grievors were not required to use their car as alternative means of transportation was provided. He further argued that the. Board did not violate the policy as reimbursement for transportation had to be authorized which in this case it was not. He further submitted that the Board was not estopped from not reimbursing the grievors as the grievors were not detrimentally affected by the policy. Article 24.04(a) and 24.05 state as follows: 24.04 Meal allowance (a) The current practice concerning meal and expense policy will be continued for the duration of this Agreement. The daily meal allowance for three meals in a day is subject to a maximum daily allowance of $23.00 This amount is itemized as follows:... 24.05 Kilometrage Rates (a) If an employee is required to use his own automobile on the Employer's business, the following kilometrage rates shall be paid: Effective May 30, 1990:... The relevant portions of the Policy and Procedure Manual state. EXPENSE ACCOUNTS - EXPENSE ACCOUNT POLICY POLICY It is the policy of the Worker's Compensation Board to reimburse employees for expenses incurred in the performance of their assigned duties in accordance with the general provisions set out below. Under no circumstances does the Board require an employee to incur reasonable and necessary expenses for the conduct of Board business, without reimbursement within approved quidelines, as a condition of employment. TRAVEL AND TRANSPORTATION GENERAL All travelling expenses, within budgetary limits are to be authorized by the employee's immediate supervisor. This authorization is subject to further approval as may be required by the Executive Director concerned. METHOD OF TRANSPORTATION The method of transportation used will be that which involves the least expense to the Board considering both the dollar cost and the travelling time involved. PUBLIC TRANSPORTATION Where public transportation is used by an employee on Board business, the expenses will be reimbursed. AUTOMOBILE TRAVEL An employee may, with supervisory approval, drive his or her own automobile on Board business. DISTANCE TRAVELLED BETWEEN EMPLOYEE'S RESIDENCE AND THE BOARD WORK BASE An employee using'his or her own automobile or a Board automobile who is required to travel · on Board business, will not be .allowed to claim from the distance travelled between the employee's residence and the Board work base unless approved by the employee's supervisor~. It was established and it was agreed by the Board that it did in the past pay rehabilitation officers for the costs- of kilometres travelled to training sessions held outside the normal work base and the Board did admit that on this occasion it changed its policy. The management has a broad ability to manage its workforce under the management rights clause. However, these rights are subject to the rights and obligations negotiated in the collective agreement. Article 24.04 and article 24.05 set out the rights and obligations relating to meal and kilometre allowances. The ambiguity in article 24.04 lies in the use of the words "expense policy". The term "expense policy" is very broad and therefore we do not find that it is circumscribed by the Board's past practice of reimbursing the grievors for the kilometres travelled to training sessions outside the normal work base. Similarly do we do not apply such a narrow interpretation and find that it is limited to the meal allowance. The meal allowance is contained in the article and such an interpretation would make the words "expense policy" redundant. We find however, that "expense policy" refers to the Policy and Procedural Manual which contains 9 pages relating to the conditions for payment of expenses for both bargaining unit and non-bargaining unit personnel. By including a reference "expense policy" in article 24.04, the parties have agreed that the terms of the expense policy as set out in the Policy and Procedural Manual will not be changed during the course of the collective agreement. The issue is then whether articles 24.04 or 24.05 of the collective agreement have been violated and whether the expense policy has been changed. Article 24.05 of the collective agreement set out the rates payable for each kilometre travelled when an employee "is required to use his car on the Employer's business." We do not find that the grievors were required to use their cars on these occasions. On this case the grievors had to attend on Board business to attend the training sessions, but as alternative transportation was provided, they did not require a car. Furthermore, the policy set out the terms and conditions of entitlement and reimbursement of kilometrage rates. Article 24.05 cannot be interpreted to entitle the employees to reimbursement for kilometres travelled mere}y because the employee needs a car to do his job on most days. The employee must meet the pre-conditions set out in the policy. The policy required authorization 'for reimbursement of expenses. In this case the Employer specifically revoked any authorization that may have been implied from past practice. 'Therefore the grievors cannot on a strict interpretation of the collective agreement be entitled to a recovery of expenses for kilometres travelled. The issue is then, can the Board rely on its strict legal rights under the collective agreement and refuse to pay these costs on the basis of its past practice. In order to do so, the union must .use the principle of estoppel as a sword, to create a Substantive right which was n6t contained in the collective agreement. The application of estoppel as a sword has been both accepted and rejected by arbitration boards. However, without determining whether it ought to be applied in this case, and assuming that it can be applied as a sword, there is a fundamental difference between this case and the principles that were developed in the cases presented by the union. Although we are not bound to follow those cases, those cases illustrate a fundamental principle that must be present for estoppel to apply which is not present here. The essence of estoppel is to correct inequities that flow from a '~" 10 strict interpretation of the contract by parties to the contract, who have relied on conduct or promises that have not strictly conformed to the wording of the contract. The parties to the contract are the Board and the union. The parties in the case before us are the Board and the union, but the affected party is the grievor. The grievors must then, to be successful, rely on the contract as "amended" or interpreted by the. parties to the contract after the application of the principles of estoppel. The cases submitted by the Union illustrated the relationship between the actions of one party and the detrimental reliance of the other party. Each one was a union grievance. Where -the employer was estopped from interpreting the collective agreement to its benefit, the union had been induced or had acted On the employer's representation, to its detriment and had been prevented from negotiating an item during the term of its collective agreement. In RE CN/CP Telecommunioations and Canadian Telecommunications Union (1981) 4 L.A.C. (3d) 205, which was upheld by the Divisional Court at Re C.N.R. et al. v. Beatty et al. (1981) 128 D.L.R. (3d) 236, 34 OR (2d) 385, 82 CLLC para. 14163, the employer had gratuitously paid wages to a group of employees for the three day waiting period before weekly indemnity payment began. The arbitrator barred the employer from discontinuing the practice during the balance of the term of the collective agreement as the employer had by its conduct induced the union to believe that the practice would continue and the strict rights under the collective agreement would not be enforced, and the union, by forbearing to bargain for the continuation of the benefit, had detrimentally relied on the Board's representation. 11 Office & Professional Employees' International Union, Local 166 1 L.A.C. (4th) 418 (P. Haefling) the arbitrator held that management could not change a longstanding practice and exercise its management's rights to eliminate designated parking spaces for bargaining unit members. The employer had induced the union to rely on its past practice by. providing the current rules and regulations relating to parking spots to the union during its negotiations. As a result the union was affected detrimentally by not negotiating this item at its negotiations and was prevented from resolving the issue until the next round of negotiatfons.' The same principles were applied in Re Windsor Western Hospital.Centre Inc. (I.O.D.E. Unit) and Ontario Nurses' Association 8 L[A.C. (4th) 116 (Watters). This is fundamentally different from the case before us, in which the party,' the union, was not a pgrty to the agreement as' modified by the affect of estoppel. There was no evidence that the union knew of the past practice; that it perceived the arrangement as a part of the agreement with the Board, which effectively would interpret the collective agreement. Nor did the union rely on that term to 'its detriment. There was no evidence that the Union relied on the representation of the Board that it would pay these expenses for all training sessions, and therefore was prevented from negotiating this item in any negotiation session. In the case before us, it was the individual grievors who were not parties to the contract, that were attempting to fix a term of the contract and thereby, bind the union to their position. Furthermore, the application of the principle of estoppel whether it be used as a sword to create or enforce a substantive right or alternatively as a shield, it is an equitable remedy and is used to correct an inequity. In this situation there is no inequity, the grievors were treated the same way as all t~e other employees. They were provided a means of transportation and reimbursement for public transportation as were all the other employees. In conclusion we find that the Board is not estopped from exercising its management's rights. It did so within the context of the collective agreement and the expense policy. Therefore this grievance is dismissed. Dated at Toronto, thi~Ist day of August, 1991. B. A.'Kirkwood, Vicechairperson T. Browes-Bugden~Uni°n Member I. Cowan~ Employer Nominee