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HomeMy WebLinkAbout1990-0566.Lillis.90-10-23 ~. " ~' . . ONTARIO EMPLOYtS DE LA COURONNE -- . I ,\ CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS - TI:LEp"HON/:lTÉLlEPHONE: (416) 326- f388 180 DUNDAS STREET WEST, SUITE 2100, TORONTO. ONTARIO. M5G lZ8 180, RuE DUNOAS OUEST, BUREAU 2 roo. TORONTO (ONTARIO). M5G lZ8 FACSIMILE/TELÉCOPIE .- (416) 326-1396 566/90 IN THE HATTER OP AN ARBITRATION under THE CROWN BKPLOYBES COLLECTJ:VB BARGAJ:NING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Lillis) Grievor ..;. and - The Crown in Righ~ of Ontario (Ministry of Housing) . Employer BEFORE: W. Kaplan Vice-Chairperson P. Klym 'Member A. Merritt Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Failes EMPLOYER· Counsel Winkler, Filion & Wakely Barristers & Solicitors HEMING: September 24, 1990 I ; .- , f 2 - Award By a grievance dated March 9, 1990 Joanne Lillis, a Rent Review Assistant with the Ministry of Housing in Kingston, grieves that she was denied overtime and a meal allowance provided for under the collective agreement. In his opening statement, counsel for the union advised the Board that that part of the grievance relating to the meal allowance had been resolved. Counsel also advised the Board that the grievor was not seeking overtime, but was instead seeking credit for travelling time pursuant to Article 23 of the collective agreement. Most of the evidence in this case was not in dispute. On February 13, 1990 the grievor and four other Ministry I employees were required to travel from Kingston to ottawa in I order to attend a meeting. Ms. Lillis was instructed to be at I the front entrance of the Kingston Holiday Inn at 7:15 a.m. A limousine had been hired to drive the party to and from the Kingston Holiday Inn. The Kingston Holiday Inn is extremely close to the office where the grievor works. While the grievor does not park her car in the Holiday Inn parking lot, other employees of the Ministry of Housing do so. The Holiday Inn was selected as the pick-up point for two reasons: first, because Ms. Dianne Aziz, the Manager, was concerned about negative public reaction should members of the public see Ministry employees entering and leaving a limousine; and second, for the convenience of the staff making the trip. Ms. Aziz also testified that she ) -- . -; \", 3 sent the employees travelling to ottawa a memorandum indicating that the Holiday Inn was the designated work place on February. . 13th. I The grievance in this case alleges that the employer has violated the collective agreement in that it failed to provide Ms. Lillis with travel time provided for in Article 23.2. The employer· alleges that the travel time should be paid as provided for in Article 23.3. The two provisions are as follows: 23.2 When travel is by a pUblic carrier, time will be credited from one (1) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the destination. 23.3 When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or place of employment. The grievor's regular work day begins ~t 8:00 a.m. and concludes .I at 4:15 p.m. The grievor and the other members of the party left Kingston at 7:15 a.m. and returned to the Holiday Inn at 6:00 p.m. These facts are not in dispute. What is in dispute is which provision of the collective agreement applies to the facts of this case. 1 1 ; I .- . ^ ! 4 - Arqument In brief, counsel for the grievor argued that the limousine was a - "public carrier," and so the grievor should be compensated for travel time beginning one hour prior to the scheduled departure and ending one hour after returning. The employer takes the position that the travel was by automobile and it was directly from the place of employment. Accordingly, in counsel's view, the grievor should be compensated for travel time from the actual time of departure to the actual time of return. (Both the union and the employer were agreed that compensation only ran to the start and from the finish of the grievor's regularly scheduled working hours.) Counsel for the union argued that the employer has no right under the collective agreement to "designate" a work place, and therefore had no right to designate the Kingston Holiday Inn as the work place on February 13th. If the employer had that right it could have just as easily Udesignated" ottawa as the work place on that date and not given any travel time compensation at all. If this interpretation were sustained, a ministry in one of the Toronto suburbs could "designate" Union station as the place of employment on a particular day in order to avoid having to pay for travel time under Article 23.2. While it was true enough that the Holiday Inn was proximate to the place of employment, counsel argued it was not the place of employment, and for Article 23.3 to apply departure had to be from home or from the ., -- . ~\i 5 - place of employment. . Mr. Wells. also argued that the term "public carrier" should be widely interpreted to include a . hired limousine. Counsel submitted that Articles 23.2 and 23.3 should be compared. Article 23.3 referred to automobiles and was intended to apply to private cars. The limousine was not a private car, but a hired vehicle and that was included in the term "public carrier." Counsel urged the Board to take a purposive approach to Article 23.2. In Mr. Wells I s view, the purpose of Article 23.2 was to compensate employees for having to be somewhere at a designated time in order to make a scheduled departure. When people travel by prívate car they can exercise some degree of control over when they leave. In this case, the grievor could exercise no control. She was told to be at a particular place at a particular time. In counsel's submission the provision was intended to compensate a person for the inconvenience of having to travel to a designated departure point at a designated point and that, Mr. Wells suggested was exactly what this case was all about. union counsel agreed that in this case the effect of applying this Article would . be to give the grievor a generous allowance for travel to the departure point, but the Article equally applied to a person who had to travel a longer distance. The fact that some persons had shorter distances to travel to the designated departure point than other persons should not affect þ -- ;j" 6 - entitlement to the benefit of the provision if travel was by a publ ic carrier. Moreover, the fact that the Holiday Inn was so - close to the place of employment should also not be taken into account. It was a different place,' the grievor was required to be there at an appointed time, she travelled in a vehicle offering transportation services to the pUblic and she should be compensated just as if she had been required to be at the train station or bus terminal. Counsel for the employer agreed that the purpose of Article 23.2 was to compensate employees who were required to go to airports bus terminals, train stations etc~ It was not, he submitted, intended to compensate people who travelled directly from their place of employment by automobile and returned directly to their place of employment by automobile. In counsel's view, the hired limousine in this case was not a "public carrier." It was a hired automobile that left directly from the place of employment and returned to it. Mr. Failes provided the Board with a helpful dictionary definition of the word lIpublic transport" According to the Concise Oxford Dictionary "public transport" is defined as: "buses, trains etc. , available to publ io and having fixed routes, as opposed to hired or private vehicles." The limousine did not fall into this definition, counsel argued, because it did not have a fixed route, it went where it was ordered. It was not open to all members of the public, but was chartered specifically for the benefit of the party travelling to and from Kingston. · ) I -- . r" I .. 7 the Ministry I Moreover, counsel argued tha~ the Holiday Inn and offices were so close that they should be treated as being the I same place for the purpose of applying the collective a9reement. The fact that Ms. Aziz "designatedlt.the Holiday Inn as the work place on the day in question had no practical impact on the grievor or anyone else. Counsel also pointed out that the limousine in question was not registered under the Public I vehicles Act, which is statute regulating transportation in a ontario. Decision The arguments of both counsel were extremely helpful and persuasive. However, in our view the grievance must be denied. The qrievor was required to be at a particular place at a particular time, but we do not find that she travelled in a public carrier as required by the collective agreement. We find that the term "publ~c carrier" in Article 23.2 is intended to apply to carriers following fixed routes offering transportation services to the public. The carrier in this case was a private limousine offering transportation only to the party which had chartered it. Here travel was by automobile not by public carrier as we interpret the term, and this travel began, as provided for in Article 23.3, at the assigned hour of departure. Notwithstanding the fact that Ms. Aziz purported to "designatell the Holiday Inn as the work place on the day in question, we find ! .- " .. 8 - that there were two rational reasons for scheduling the departure from the Holiday Inn. In any case, given the pr?ximity of the .' Holiday Inn to the place of employment departing from the Holiday Inn was equivalent to departing from·the place of employment. It was next door to the place of employment and in our view, in this case, departing from the Holiday Inn is the same thing as departing from the place of employment. We find that ArtiCle 23.2 is intended to apply to those situations where a person must attend at a train station, bus terminal or airport, not those cases where people leave from the workplace, or next door from the workplace, in a hired car. Very simply, train, bus and airplane passengers do not have the convenience of getting in and out of an automobile. Travellers must arrive early. They must line up for tickets, they must check in, pass through security, wait, collect their baggage at the end of their trip and so on. In the case' at hand, it was is if the grievor was going to work. While Ms. Lillis had to be there in time for a designated departure, the collective agreement provides for compensation for that early arrival by compensating her for travel time. .. ) -' -- . ~, ! 9 - We order that the grìevor be compensated for travel time as provided for in article 23.3. we retain j~risdiction over the . - implementation of this award. Dated at Ottawa this 23rdday of October 19.90. jJ// william Kaplan Vice-Chairperson '1" tI{((,¿l~ (Addendl.ID a:ttac:hed) - P. Klym Member - . r-.. I ClllL ..,..\.~ V'^-..l:rF; A. Merritt Member , - -~ ~ -.- OCT 22 '9Ø 15:08 CCLD 135 P02/Ø2 - ~ . -- ,. ADDENDUM . -- - GSB 566/90 (LILLIS) - I agree ~ith my colleagues on the Panel that compensation tor tbis particular trip should be under Article 2~.3 rather than Article 23.2. However, r am concerned that the supervisor, Ms. Aziz felt that there waS a need to designate another location as the grievor's workplace for that day. Indeed, based on sub- mission at the hearing, there are serious quêstion$ as to. her right or management's right in general to ohange designated workplaces in this manner. One can only conclude that Ms. Aziz had reservations about the avplicability of Article 23.3 if the limousine left the Holiday Inn rather than the regular workplace and she was attempting to circumvent any intérpretation problems. In my view, technically the grievor is entitled to travel tÌIDe from the time of her departure from her regular workplace for the Holiday Inn and until the time cf·her arrival at her regular workplace from the Holiday Inn. In this case very little t~e 15 involved because of the immediate proximity of her regular workplace and tha Holiday Inn, but in other situations it could be significant. ~~- :Peter Klyrn .