HomeMy WebLinkAbout1989-1720.Ward.93-06-02 ONTARIO (~- EMPLO¥~$DELA C. OUHONNE
CROWN EMP~. ,.., r EES DE L 'ON TARIO
,~- " ~ ~ GR'EVANCE .CpMM'SS'ON DE
BOARD' DES GRIEFS.,
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'1720/89, 1721/89
IN T~ MATTER OH A~ ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Ward)
~ Griever
- and -
The Crown in Right of Ontario
(Ministry of Citizenship)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
T. Browes-Bugden Member
'M. O'Toole Member
FOR THE- G. Richards
uNION Senior Grievance Officer
Ontario Public Service Employees union
:
FOR THE J. LeN6ury
EMPLOYER Counsel
Morley, Hamilton, Stewart & Storie
Hicks,
Barristers & Solicitors
HEARING March 10, 1993 '
DECISION
On May 15, 1992, a panel of this Board consisting of the
present Vice-Chairperson and union Member, and Employer Member
Mr. George Milley issued a decision determining two grievances
filed by Mr. Scouter Ward. The union subsequently, requested
that the Board reconvene to deal with certain issues that had
arisen between the parties relating to the remedy in one of
~the grievances.
.. When the Board reconvened, Mr. Michael O'Toole had
replaced Mr. Milley as employer member 'on the panel..
Following a brief discussion as to reasons for the'
substitution, the Parties-~agreed that the Board as constituted
had jurisdiction to deal with the matters in dispute.
The grievance in question alleged that the grievor, had.
been disciplined without just cause by being transferred from
his position as Race Relations Consultant at ~the Hamilton
Office to a desk job in the Toronto office. Following 12 days
of evidence and extensive written submissions, the Board
issued a 68 page decision, with Mr. Milley registering a ~
page partial dissent.
in its decision, the Board allowed the grievance.and at.
p. 67 stated as follows:
Accordingly, the Board directs that Mr. Ward
be reassigned to the position he held as RRC of~the
South-East Region forthwith. The union sought
reimbursement for costs incurred by Mr. Ward in
travelling between Brantford and Toronto to work
and to be paid for the hours involved in
travelling. The employer made no submissions on
this monetary claim. The Board sees no reason not
'to award the reimbursement as claimed, since the
loss is a direct result of the employer's
contravention of the collective agreement.
At p. 68, the Board made.the following directions:
Grievance dated November 10, 1989
(1) The grievance is allowed.
(2) The grievor is to be returned to his former
position as RRC of the South-East Region forthwith.
(3) He is to be reimbursed for costs incurred in
travelling between his home in Brantford and his
workplace in Toronto.
(4) He is to'be paid at.his regular wage rate. for
the additional travel time incurred as a result of
the employer's breach.
The parties are in dispute with regard to two issues. We
deal with each separately.
Travel Expenses
The grievor lived in Brantford, Ontario. When he was
transferred to Toronto, he had to spend more time in
travelling to work between Brantford and Toronto and also
incurred more travel ,expenses than 'before. The Board's
direction was that the grievor be compensated for the
additional time and travel expenses incurred as a ~esult of
the employer's breach. The parties are in disagreement.as t°
the amount of compensation owed to the grievor under the
Board's direction that "he is to be reimbursed .for costs
incurred in travelling between his home in Brantford and his
workplace in Toronto."
It is not in dispute that from the time of his'transfer
to Toronto'the grievor purchased what is known as a monthly
"twin pass", for the Go and TTC services, and that to travel
between his home and his office in Toronto by public
transportation, he had to use both services. The grievor
purchased the twin monthly passes for the period January 1990
to June 1992. It is further agreed that the grievor's last
day of work in Toronto was June 10, 1992. The parties appear
to be in agreement as tO the.actual costs of the twin passes.
The dispute is as to whether he is entitled to be reimbursed
for those costs.
It is common ground that the twin pass entitles the
grievor to unlimited travel between Brantfordand Toronto and
within the entire TTC network. Thus employer counsel points
out that he could have used the passes on week-ends, on his
off daYs and-after work hours for personal non-work related
purposes. Employer counsel submits that the pass gave the
grievor the benefit of travelling for purposes other than
attending work. He takes the position in essence that the
employer ought not be required to reimburse the~grievor for
5
th~ costs of a pass, the price of which included benefits
greater, than the work related travel. Moreover, counsel
points out that the griev0r'had many absences due to illness.
When calculating the cash~fare for the days actually wor~ed by
the grievor, it Would have cost him less if he had paid daily
cash fare on his work days, rather than purchase monthly
passes. Thus the .employer takes the position that. its
obligation must be limited to the cost of daily cash fare for
each day that the grievor actually travelled to work.
In support of its position, the employer relies on the
Management-Board ~ of Cabinet policy on reimbursement for
travel. Particular emphasis is placed on section 7.1 of the
policy directive which provides: ~-
. 7.1 The most economical mode of transportation '
shall be Used when travelling at the expense of the
government, keeping in mind the purpose and urgency
of the trip.
It is employer counsel's positiOn that the Board's award
was to reimburse the grievor for'his travel expenses and that
since the grievor is an employee in the Ontario Public
Service, his travel expenses must be governed by the
government's policy'on travel e~penses.-
With respect, the employer's position is based on a
complete misconception of the nature and purpose of a remedial
order issued by the Board following a finding of a violation
of the collective agreement. In our view, the government
travel policy has no relevance whatsoever to this situation.
The travel policy clearly is not intended to reimburse
employees· in the ePS for travel expenses incurred in
travelling, to and from work. The fact is that employees are
not reimbursed for'those expenses. The purpose of the policy
is stated at p~ 2 as follows:
This policy provides a basis for the reimbursement
of expenses incurred by an employee who is on
travel status or who is required to extend
hospitality .on .behalf of the Government. The
policies will be discussed under the following
headings:
- 6.0 Policy - General 3
- 7.0 Policy - Transportation
- 8.0 Policy - Accommodation 9
- 9.0 Policy - Meals 9.
-'10.0 Policy - Receipts 11
"Travel Status" is defined, in section~4.13 of the policy
as "the status of an employee Who is absent .from work and
headquarters on government business". There can be no doubt
that the griever was not on travel status. Nor was he
extending hospitality on behalf of government, when he
travelled between his home and his workplace.
'The griever has no entitlement, for reimbursement
independent of the Board's remedial direction. The Board's
direction, as'noted earlier, was that he be compensated for
the additional travel costs that resulted from the employer's
breach. Regardless of any other practice or policy, in order
to be made whole he is, entitled to that remedy.
This is not to say.that because the Board directed that
the grievor be compensated for travel costs, there is no
limitation to the costs he may incur for travelling to and.
from work. His entitlement is only with regard to expenses
which are reasonable in the circumstances. For example, if
the grievor rented a chauffeur driven luxury limousine for
travel to work, that clearly would not be a reasonable
expense. Therefore, the only issue left to be determined is
whether the expenses incurred for the purchase of the monthly
twin passes could be deemedto be reasonable.
~ In all of the circumstances we are convinced that they
were. It must be remembered that at the time the grievor
purchased the passes he could not have known that the employar
will be held responsible for the costs. 'If the grievance had
been disallowed, the .grievor would have had to bear those
costs' himself. Also, the passes have to be purchased in
advance of each month. Therefore the grievor could not have
predicated how many days he will be off sick in each month. In
the circumstances, considering the relative costs and'the
convenience of using a monthly pass. as compared to paying cash
8
for each trip, it could hardly be said that.the grievor acted
'unreasonably in.purchasing the~monthly passes. ~
Accordingly we find,that he is.entitled'to be reimbursed
for the .additional costs he incurred in purchasing .those
passes, during the period he travelled to work between
Brantford and Toronto..
Functus Officio
The grievance form was filed as an exhibit. In it the
settlement desired is set out as, "That I be returned to my
former position with full retroactivity and interest in pay
and benefits and including damages to Octobe'r 30, 1989.
In her opening statement the then counsel for the grieVor
stated as follows in describing the remedy sought: "We seek
reinstatement to the former position of Race Relations
Consultant, ~that he be made whole and that all letters of
reprimand be removed from his file."
Following the evidence portion of the hearing, 'final
submissions were made solely through written briefs. 'Union
counsel's submissions on remedy were set out under a separate
heading as follows:
vi, Remedy
The grievor seeks to be returned to his former
position as the Race. Relations-Consultant for the
South-East region. He also seeks that the letters
of reprimand be removed from his personnel file as
they amount to discipline without just cause. In
order for the grievor to be made whole again, he
also is seeking reimbursement for the costs
incurred in travelling between Brantford and
Toronto each working day and to be paid for the
hours involved. Mr. Ward's'commuting allowance was.
terminated on January 1, 1990 (Ex. 15),. Previously
he had received reimbursement both for his travel
time and expenses incurred while working in Toronto
as a multicultural program consultant.
Based on the evidence and submissions, the Board allowed
the grievance and made a remedial order, which we repeat here
for convenience:
Grievance dated. November 10, 1989
(1) The grievance is allowed.
(2) The grievor is to be returned to his former
position as RRC of the'South-East Region forthwith.
(3) He is to be reimbursed for costs incurred in
travelling between his home in Brantford and his
~workplace in Toronto.
(4) He is to be paid at his regular wage ra~e for
the additional travel time incurred~as a result of
the employer's breach.
Immediately following that remedial order, the Board
ended its award with the following:
The Board remains seized in .the event the
parties are unable to agree upon the proper
implementation of this decision.
ti
10
The Union now seeks a direction from the Board that
interest be paid on the compensation owed under paragraphs (3)
and (4) of the remedial order. Mr~ Richards points out that
in discipline cases it is not uncommon for the Board to award
interest on back-wages owed. He points to the basis for
interest awards, namely, to compensate for the loss of the use
of the money. He submits that this rationale equally applies.
here..
Union counsel submits that the Board's retention of
jurisdiction to deal with "the proper implementatlon of the
decision is broad enough to enable the Board now to make an
award of interest. It is counsel's, position that the Board
remained seized for the purpose of calculation of the actual
travel expenses and travel time, and that interest is part and
parcel of this calculation. Counsel further submits that the
Board has not decided to deny interest to the grievor after
turning its mind to the issues of interest. It is therefore
submitted that in these Circumstances the Board is not functus
for the purpose of awarding interest.
Employer counsel argues that the Board has provided a
full remedial award in its decision. Having claimed interest
in the grievance form, it was open to the grievor to pursue
that remedy and chose not to do so. The Board had the
oDportunity, if it' so wished, to deal with the issue of
interest in its decision, and a~so chose not'to. In his view,
the Board remained seized only to deal with the implementation
of the directions already made, and not for the purpose of
making additional directions. He submits therefore that the
Board is functus for purposes of dealing with t~e union's
request for interest.
-The law on the doctrine of functus officio is aptly
summarized by the 'Board in Re Figliano~ 2t8/79 (Pritchard).
At p. 12 the Board states:
...Once a board of arbitration has completed its
decision-making and issued its decision, its
jurisdiction is terminated and it has no power to
· render .any further decision or award. However,
where a board of arbitration reserves jurisdiction
to 'deal with the. question of remedy or parts
thereof, its jurisdiction is continued to the
extent of that reservation.. Thus, where at the
request of the parties or on its own initiative a
board retains jurisdiction with regard to some
aspec~ of the decision, the board is not functus
officio. The 'difficult question raised by this
case is whether the reservation of jurisdiction on
one issue retains the Board's jurisdiction on all
.matters in dispute before the Board or 'only with
respect to the matter specifically reserved. That
is, is the Board functus officio on all matters
except those actually reserved or does the doctrine
of functus apply only when the Board has disposed
of all matters in dispute before' it.
The Board goes on at p. 13:
However, we do not accept this expansive notion of
our 'jurisdiction since we do not believe it is
supported by the authorities and we are not sure
that as a matter of policY that. the Board's
processes would in general be facilitated by
adopting such a notion. While we accept the fact
that the doctrine 'of functus officio in arbitral
proceedings originated in purely consensual
12
commercial arbitrations and that it. ~is not'
necessarily equally suitable in or applicable to a
statutory labour tribunal such as ours, we do
believe that at its heart lie certain desirable
concepts. It offers 'finality to proceedings,
giving rise to final awards which the parties may
interpret; enforce or review. It creates an
incentive for parties to put their full and best
case before the Board at one time, subject to
express reservation of certain matters to~ a
subsequent stage in the proceedings. Perhaps most
importantly it permits the parties and the Board to
.agree to bifurcate the .proceedings between, for
example liability and remedy, without inviting a
rehearing of the entire case at the second stage in
the proceedings.
At p. 14 the Board states:
Rather, the better view is that jurisdiction is
retained only With regard to those issues on which
jurisdiction is reserved either expressly or
implicitly and those issues on which the board has
not reached a final conclusion. Whether or not
jurisdiction is retained becomes therefore a
question of fact to.be resolved by reference to the
board's decision and the conduct of the. proceedings
before it.
Counsel for the union relied on Re Anqus et al,~ 203/84
(Slone). In that case a panel of the Board chaired by Mr.
Brandt dealt with a number of classification grievances. The
Board found that the positions were improperly classified and
made the following direction: "In summary; all of the
grievances are allowed and it is hereby declared that the
employer'classify the grievors properly."
The matter subsequently' came before a' differently
Constituted panel of the Board, The union sought a remedy
from· the Board with regard to the retroactivity of the
reclassification and an award of interest on'outstanding
retroactive payments. TheBoard accepted the law as stated in
Re Figliano (supra), and at p. 8 stated:
Thus, t~he threshold issue before us is whether
or not the Brandt board expressly 'or implicitly .
reserved jurisdiction to deal with the matters of
retroactivity and interest.
At pp. 9-10 the Board concluded:
. . we are of the view that there was an implicit
r~servation of jurisdiction. Even though the
Brandt panel awarded the remedy of
reclassification, it is obvious from reading the
long award that it did not turn its mind to the
.issues of retroactivity or interest, both of which
Would have been logical issues to address. It
simply never got that far. In such a case, it
would be harsh and unduly rigid to suggest that a
board cannot be approached to complete what it has
started. It would obviously be different had that
board considered the issues and rejected them. The
doctrine of functus officio means that you only get
one kick at the can.
It is perfectly consistent with Mr. Prichard's
statements in Figliano to find such an implicit
reservation of jurisdiction in this .case. The -
question of jurisdiction surely do~s not depend
entirely upon whether the arbitrator has remembered
to add the magic words "and if the parties have any
difficulty in the implementation of this award we
will remain s~ized etc.", or words to that effect.
The use of those words might be the best evidence
of a retention~of jurisdiction, and might represent
good practice, but' it would not be the only
possible basis to conclude that jurisdiction was
retained. For that matter, th'e use of an express
resarvation miqht even be ineffective in a case
where the board had truly dealt with everything
before' it.
Accordingly, we find that the issues of
retroactivity and interest for the original six
grievors remain outstanding, and this panel has the
jurisdictiOn to consider the appropriateness of
such further relief.
That was a classification grievance. It is not clear
whether the union in the 'original'proceeding sought
retroactivity and interest. It appears that the Slone panel
concluded that the union had done so, because it stateS that
those, issues "would have been logical issues to address" and
that the first panel "simply never got that far". In those
circumstances, despite the absence of an express reservation
of jurisdiction on the part of the first panel, the Slone
panel concluded that the Board was not functus officio.
.~ The Slone panel was at a disadvantage in that it had to
determine whether a differently constituted panei impliedly
retained jurisdiction to deal with~ the issues in question.
Thus it would have had to make that determination of fact
solely from a reading of the decision itself. Here, the
present Vice-Chairperson also authored the~initial decision,
and that decision has'an explicit reservation of jurisdiction
for purpose~ of implementation of the decision. I am in a
better position to determine what was intended by that
reservation.
Mr. Richard's submissions relating to the appropriateness
of awarding interest where a grievor.is denied the use of
money due to .a breach by the employer are well taken.
15
However, those are submissions that go to the merits of the
claim. They do not assist us decide the issue of' functus.
This is not a case where there was a bifurcation of the
liability and remedy aspects of the grievance. The Board not
only found that the grievor had been disciplined without just
cause, but went on to provide remedies designed to redress
that violation of the collective agreement.
In the grievance form the grievor claimed interest..
the opening address, counsel sought that the grievor be "made
whole". We do not think that if a grievor is to pursue
interest, he must expressly refer to interest in the grievance
form or in the opening address. However, what must happen is
that, where there is no bifurcation of the remedial aspect of
the Proceeding, all remedies desired must be pursued. The
grievor cannot seek some remedies only and defer others for a
later time unless such deferment is raised and agreed to by
the Board.' As the Board stated in Re Angus (supra), "the
doctrine of' functus officio means that you only get one kick
at the can".
In this case while interest was expressly referred to in
the grievance form, it was never pursued in final submissions.
In its brief, the union clearly set out what it wanted by way
of remedy. (See, p. 9 supra). Those were:
(1) "The grievor seeks to be returned to his former
position as the Race Relations Consultant for the South-East
Region"'.
(2) "He also seeks that the letters of reprimand be
removed from his personnel file ...".
(3) "In order for the grievor to be made whole again, he
is also seeking reimbursement for the costs incurre~ in
travelling betweeq Brantford and Toronto each working day and
to be paid for the hours involved".
We agree with Mr. Richards that the Board did not turn
its mind to the issue of interest and decide that interest
ought not be payable. However, that was not because the Board
deferred the interest issue for later determination. Interest
was simply not an issue put before the Board. Unlike Re AnGus
this is not a case of the Board "not getting that far" or of
."not'completing what it started".
The Board's remedial order reveals that of the remedies
requested by the union, the Board granted everything except
'the removal of one of the two letters of reprimand. The Board
found that there was just cause for that. one letter.
Significantly, the union in its brief set out the remedies
needed "in order for the grievor to be made whole again".
That did not include a claim for interest.
As the Board in Re Fi~liano (su_~p_~) points out, there are
compelling policy reasons for applying some form of doctrine
of functus officio in arbitration proceedings. In the present
case.when, the threshold question.is asked whether the Board
expressly or impliedly retained jurisdiction to.deal with the,
issue of interest, the answer clearly must be in the negative.
The.Board in its decision made an express reservation of
jurisdiction for the purposes of dealing with "the proper
implementation of this decision". H~ving made an express
reservation of jurisdiction for a particular purpose, there is
no room for inferring a reservation of jurisdiction for other
purposes. The Board in its decision directed that the grievor
be compensated for his travel expenses and the parties could
not agree on what travel expenses were to be compensated
pursuant to that direction. That outstanding issue clearly is
a matter relating to the implementation of the Board's
decision. If the Board had directed that interest be paid,
and the parties could not agree'for example on the amount on
which interest is applicable or as to the rate of interest,
similarly we would not have been functus. However, that did
not happen. The union made its remedial claim and the Board
considered and decided each remedy requested. It did not
retain jurisdiction to consider any further remedial requests.
~8
Accordingly we uphold the employer's position that the
Board is functus officio and has no further jurisdiction 'to
consider the union's request for interest. However, we
continue to retain jurisdiction for the purpose of quantifying
the grievor's entitlement for reimbursement of travel
.expenses.
Dated this 2nd day of June, 1993 at Hamilton, Ontario.
N. Dissanayake
Vice-Chairperson
~ "I Partially Dissent" (Co follow)
T. Browes-Bugden.
Member
M. O'To°le
Member