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HomeMy WebLinkAbout1987-1398.Hayford.88-07-05 ~ ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DEL'ONTARfO : . II GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS 180 OUNDAS STREET WEST. TORONTO. ONTARIO. M5G lZ8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO. (ONTARIO) M5G 118. BUREAU 2100 TELEPHONE/T~LEPHONE (416) 598-0688 1398/81 IN THE MATTIR OP AM ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Hayford) Grievor - and - The Crown in Right of Ontario (Ministry of norrectional Services) Employer Before: D.H. Kates Vice-Chairman P. Klym Member R. Tl"akalo Member For the Grievor: P. J. Lukasiewicz -. Counsel Gowljng << Henderson Barristers <<Solicitors For the Emplover: 3. Whibbs Reg. Personnel Admin. Eastern Region Ministry of correctional Services Hearlnqs: April 6, 1988 . Decision In this c~se the clear issue raised in dispute is whether the Ministry's policy with respect to paying trevel ollowance is consistent with its obli9~tions under Article 22.1 of the collective agreement. The relevant provisions of the Ministry's policy referred to as Adminiatrative and ~1nancial Procedures - Vol. 1 - Finance reads as %ollows: Definitions Head9uarters The location at or from which the employee normally performs his duties. Personal Car A car which is owned. rented or leased by an employee. Travel Travel on Government business for which the appropriate opproVal(s) have been obtained ~nd f?r which the Government p~ys the expenses. Tr~vel does not include commulinq between an employee's home ~nd headquarters unless the employee is recalled to work and is not entitled to compensation by way of pavor leave in lieu thereof. The rec~ll could be either after"s normal working day or on a scheduled day off. Travel Status The status 0% an empl~vee who is absent from home and headquarters on Government business. Lravel Ex~~ ?tartinq and Finishinq Points Wh~n an emplo~ee st~rts or finishes ~ trip at his/her place of residence transportation costs shall be paid to or ~rom tne employee's home or headQu~rters ~hichever are less. - ~ - 2 - Local Public Transportation Whenever practical. local public transport~tion should be used. It is common ground the Ministry based the foregoing policy to conform to The Guidelines document issued by Management Board of Cabinet whose relevant provisions read as follows: Travel. Meal. Hospitality and Membership-Fee Expenses Purpose To establish the principles and mandatory requirements for reimbursing employees for travel, meal. hospitality and membership-fee expenses incurred on behalf of the government. To delegate to deputy he~ds total authority in administering these expenses within the provisions of this directive. Application and Scope This directive applies to all ministries and all Schedule 1 aqencies unless exempted in a Memorandum of Unde~ndinq. This directive applies to employees expenses related to tr~vel. meals, hospitality and membership fees. Any provision of a collective aqreement that 1s in conflict with a provision of this directive. as it affects employees of a barqaininq unit eovered by the collective aqreement. prevails over the provisions of this directive. PrinCiples The following should %OrD the basis ~pr employee- expense decisions: Expenses ~ssociated with the performance of duties as an employee should minimize cost and maximize the benefits to the organi2ation. Employees should be reimbursed for leqitimate work- related expenses authorized bv manaqement. Expenses reimbursed for le9itim~te work-rel~ted expenses authorized by m~nagement. = - 3 - Expenses reimbursed should support the attainment of the program obJective 0% the ministry. The most practicel and economical arrangements for travel. meals. accommodation. hospitality and membership fees must be made. Expense Reimbursement Reimbursement of expenses is made to employees who are absent from home and headquarters while travellinq on qovernment business. An employee;s he~dquarters are the location where duties ~re normally performed. When travel from place to place is necessary to carry out government buainess, a temporary work location may be designated as the headquarters. Transportation expenses are usually calculated as thouqh the trip started from and ended at the employee;s headquarters. At, times. an employee may choose to use a more expensive method of transportation. or to travel an indirect route for personal convenience. But expenses should be reimbursed baaed only on the most economic~l and practic31 method for transportation normally ~vailable. Normally reimbursement of expenses for travel between an employee's home ~nd he~dQu8rters should not be oermitted. However. employees recalled to work who do not receive compensation or leave in lieu 0% p~y may be reimbursed for trovel expenses. Reimbursement also may be approved in other unusual circumat~nces. Personal Vehicles Personal vehicles include motor vehicles owned. borrowed. rented or leased by en employee. Employees may be permitted to drive personal vehicles on government business~ although it is not 8 requirement. I~ no government-owned vehicles are aV8i~able, use 0% e personal vehicle may be the most practical transportation alternative. Mator-vehicle Travel Use of government vehicles When road transportation is the most economical manner of travel, government vehicles ~ust be used when available. - 4 - When government vehicles are not available. personal vehicles may be used. Government vehicles must be used only for business purposes. When a rental vehicle is required, it must be obtained from ~ vendor that has been approved and listed by the Ministry of Government Services. Reimbursement for the use of personal vehicles Employees must be reimbursed for the use of personal vehicles on government business according to the rates approved by the Management Board of Cabinet. <See the schedule of approved rates at the end of this directive.> emphasis added As hitherto indicated the issue to be determined is whether the Ministry~s policy as distilled from the directives of Management Board and as applied to the grievor1s circumstances are properly consistent with the employer's obligations under Article 22.1 of the collective agreement. The relevant provisions of the collective agreement read as %ollowa: 22.1 If an employee is required to use his own automobile on the Employer's business the followinq rates shall be paid: Kilometres Driven 0-4,000 km 4,001-10.700 km 10.701-24.000 km oyer 24,000 km Southern Ontario 27.5c/km 22.0c/kJR 18.0e/km .l.5.5c/km Northern Ont~rio 28.0c/kl1l 22.5c/km 18.5e/Km 16.0c/km 23.3 ~hen travel is by automobile and the employee travels directly from his home or place o~ employment, time will be credited from the assigned hour of d~parture until he reaches his desintation and from the assigned hour 0% departure from the destination until he reaches his home or place 0% employment. 38.1 This article applies to employees who do not attend at or work at or work from any permanent ministry facility in the course ox their duties. but for whom a permanent ministry facility or other place is desiqnated as an employee's "headquartera" fbr the purposes of the provisions of this collective aqreement and of various allowances which require a headquarters to be specified. ~ - 5 38.3 By mutu~l ~9reement in writing between the ministry ~nd ~n employee. a new headquarters may be desi9n~ted for ~n employee dt any time. and by mutu~l agreement in writing between the ministry and the employee. a temporery or seaeonal headquarters may be designated for a stated period. following which the previously designated h8adquerters will be reinstated unless it has been changed in accordance with this article. emphasia ~dded The circumstances that precipiated this dispute are straight%orward and without controversy. The grievor is employed ~s a Corrections Officer I at the Millbrook Correctional Centre, Millbrook. Ontario. The grievor resides at Dunsford. Ontario. In the normal course the grievor travels to and from his resjdence in Duns%ord to the work premises at Millbrook using his own automobile. He is not reimbursed for this daily routine of travelling to and from work. It is common ground that the grievor does not claim to be "on the employer's business" for the purposes of travelling to and from his residence to attend work. Or, in the 1~ngu~ge of the Ministry's policy stat.ement he is not on "t.ravel status" t.hat would in those circumst~nces render Article 22.1 of the collective agreement applicable. The foregoing proposition may appear_~bvious. Nonetheless. the principle recited. however self-evident. will be~r aome relev~nce in our ultimate disposition of this grievance. On March 23. 1987. the grievor was advised by his superiors th~t he was scheduled to attend a staff training - 6 - course at Kingston. Ontario. from April 27. 1987 to M~y 8, 1987. The purposes of the tr~ining course were amongst other things to facilitate Mr. H~yford#s elevation from Correction~l Officer 1 st~tU8 to a Correction~l Officer II. It is not disputed that the grievor was required to attend the training course as part of his employ~ent responsibilities. Mr. Hayford was authorized by his supervisor at the Millbrook Correctionel Centre to use his auto~obile to tr~vel the round trip to Kingston in order to ~ttend the training course. In due course Mr. Hayford completed his trip departing from and arriving at his residence at Dunsford. Ont~rio. The grievor. ~ccordingly. presented ~ claim under Article 22.1 %or rei~bursement 0% his travel expenses between Dunsford ~nd Kingston (return> alleging that he was "on the employer#s business" at all material times of the trip. The employer allowed the grievor#s travel claim in an amount at the applic~ble rate coverin9 370 kilomtres. It is common ground that that distance represents the distance between the grievor#s work place at the Millbrook Correction~l F~cility (ie.. his headqu~rters) ~nd Kingston. Ontario. Accordingly. he was denied travel allowance for the distance between the Millbrook facility and his home at Dunsford (return). In this grievance, the grievor claims entitlement to be reimbursed S39.00 constituting the dist~nce he w~s not credited. -: - 7 - It is common ground that the Minist~y applied its travel policy directive to the grievor's claim for reimbursement end paid him the lesser amount representing the distance between his place of residence or his headquarters and King6ton~ Onterio. Th~ employer conceded that had the grievor's placeo! residence been located closer to Kingston thon his he~dquarters at Millbrook the employer would have reimbursed his travel. costs from his place of residence. The employer simply argues that pursuant to its discretion under its policy directive it was entitled to determine an appropriate travel allowance for purposes 0% being "on the employer's business" under Article 22.1 of the collective agreement. And. in exercising that discretion the employer's policy cle~rly excluded from payment that portion of the trip between his pIece of residence at Duns%ord and his he~dquarters loc~tion at Millbrook. It is also conceded that the employer reimbursed the grievor for time spent engaged in travelling to ~nd from his place ox residence in accordance with the requirements of Article 23.3-of the collective agreement. There was no suggestion~ haVing regard to the obJective of that provision, that the grievor was anything but on the e~ployer's business for purposes of p~yment when he travelled using his own automobile '"directly" to and from. his place of residence. It is also not disputed that the employer places no - 8 - ~ restriction on where an employee chooses to reside relative to his or her place of employment. The grievor while discharging his duties as a Correctional O%%icer is required on infrequent occasions to travel outside the Hillbrook %acility. On those occasions when he does leave the facility he is directed to accompany an inmate to attend ~ medical appointment and the like. On those occasions travel to and from the facility is discharged by using a Government vehicle. Indeed, the only times where the grievor would haveocc8sion to make a claim for a travel ~llowance is when, as in this c~se. he is required by his employer to attend a training course in another city in order to improve his skills 'and qualifications as a Correctional Officer. The parties ~lso agreed that from time to time these training programmes may be arranged anywhere within the Province. The evidence indicated these courses h~ve been .scheduled as close to the Millbrook Facility as the Village of Millbrook or as far away as Ott~wa. Ontario. In either event. the Ministry applies and administers its travel policy. aa indicated, to its best advantage. That is to say, it chooses to reimburse an e.mployee:s travel claim, irrespective oz whether the departure ~nd errival points are legitimately at the employee~s residence, from either the place or residence or headquarters whichever is less. The trade union has obviously taken issue with the - 9 - ~ Ministry's travel policy as applied to the grievor's circumstance. It argues that the Ministry's policy is flawed because it fails to address the employer's fundamental obligation that Article 22.1 of the collective agreement imposes on it. That is to say~ the question to be asked is whether the grievor was legitimately "on the employer's business" when he departed from and arrived at his place of residence at Dunsiord, Ontario, in order to complete the trip to attend the training course at Kingston, Ontario? The parties' agreed statement of fact indicated that the grievor was required to travel using his own automobile for that purpose and accordingly he was authorized by his supervisor to do so. The Bo~rd in dealing with this griev~nce is in total agreement with the trade union's position. We 'are of the opinion th~t the grievor while required to tr~vel using his own' automobile was "on the employer's business" when he lext from and ~rrived at his place of residence at Dunsford in order to attend the training course. While travelling the eyidence est~blished the grievor's status as defined by the Ministry's own policy directive was that of an employee holding "travel status". And as such t.he.. grievor w~s entitled to claim reimbursement for his travel expenses aa contemplated under Article 22.1 of the collective agreement. ~~ -: 10 - There were several factors that emerged in the evidence that has induced us to conclude th~t the dist~nce between the grievor's residence and his headquarters constituted, in the l~nguage of Article 22.1, ..~ requirment to travel on the employer's business" The on~ signi:ficant f~ctor pertains, of course, to the employer's admission thet they paid the grievor, pursuant to Article 23.3 of the collective agreement, %or time spent in his travelling to and from his place of residence ~o attend the programme. To h~ve been consistent with its own trovel policy <although we do not suggest the employer would have been correct) the Ministry should h~ve restricted the grievor's reimbursement under that provision to ~ like period of time consumed in travelling between his headquarters loc~tion and his destination at Kingston. It appears obvious thet the only reason the Ministry paid the grievor for time spent travelling to and from his place of residence is because in our view it correctlY concluded th~t the grievor was "on t.he employer's business". Accordingly, it is logical to in~er that the Ministry would not otherwise have reimbursed an employee for time spent travelling under that provision unless legitiJ1\~tely engaged in_.travell1ng on the employer's business. So in a like fashion the Ministry ought to have determined that the grievor held like travel status for the purposes of reimbursing him his expenses under Article 22.1 o~ the collective agreement. It was also clearly admitted that had the griever's ~ - 11 - ": place of residence been closer to Kingston than his head- quarters at Millbrook the grievor's travel allowance would have been calcu18~ed. having regard to the distance travelled, to and from his place of residence and not his headquarters location. In other words, in those circum- stances that are most favourable to the employer it would exercise its discretion to award travel costs to and from an employee's place of residence as being tr~vel while legitimately "on the employer's business". But in 8 contrary situation as in the grievor's case, an employee is deemed not to be engaged in the employer's business. It is our position. of course, that an employee holds "tr~vel status" irrespective of the location of his place 0% residence rel~tive to his he8dqu~rters. when he is authorized or required by his employer to use his automobile on the employer's business. Wh~t is it therefore that entitles the Ministry under its travel policy directive to have the best of both worlds? Why is it that an employee is legitimately on the employer's business in the one case and not on the employer's business in the other? In order to appreciate the Ministry's position it is necessary to outline briefly the argument developed by the employer (and confirmed in the GSB arbitral awards) pertaining to the notion of "heactquerters" as that term relates to the reimbursement o~ travel costs under Article 22.1 of the collective agreement. The arbitral - 12 - Jurisprudence haG since been entrenched under Article 38 of the collective agreement. It is common ground th~t Article 38 represents ~ culmination of the arbitral cases dealing with the problem o:f designating ..tr~vel statue" for employees whose unique ch~racteristic is that their work responsibilities m~ke them "ambulatory". Th~t. is to s~y the ambulatory employee occupies the type of position whose Job duties require him or her t.o travel with the employer's authorization from place to place usually using their own vehicle. And bec~use of the ~mbulatory n~ture of those duties and responsibilities these employees, unlike the grievor, lacks permanent place oi employment or headquarters. Accordingly, the arbitral Jurisprudence developed the fiction~l notion of "a headquarters" for purposes of the application of Article 21.1 of the collective ~greement. And so long ~s the employer exhibits both "fairness and equity" it may determine or designate a headquarter's location :for the ambulatory employee from which ..the employer's business'" begins and ends for the purposes 0% reimbursing travel claims under Art.icle 21.1 And i.n determining what constitutes '"fairness and equity" in the designation of a headquarter's loc~tion the ,-~ employer weighs two considerations. ,Both are somewhat interrelated. The one consideration was that the employer imposes no restriction on the geographic location relative to the work place where an employee chooses to reside; and secondly~ in the normal course of performing the duties and .. ';' - 13 - responsibilities the employee normally travels on his or her own time to attend work selecting his or her me~ns of transportation to do so. Accordingly the designation of where "headquarters" ought to be located in t.he case 0% the ambulatory employee for the purpose of determining his "t.ravel status" under Art.icle 22..1 took t.hese foregoing considerat.ions into account (see: Re Williamson and Ministrv of Transport.aion and Communications <1982> GSB 187/81 (Barton>; Re Howes and the Ministry of Transportation and Communications (1982) GSB 356/82 (Verity>: Re OPSEU Union Grievance and Ministry of Transport~tion and Communic~tions (1984) GSB 145/82 (Brant>; Re Wilcox and Ministrv of Transportat.ion ~nd Communications (1985) GSB 761/84 (Roberts)). And so it is argued in a like fashion the Ministry in the grievor's circumst~nces w~s entitled to determine his Uheadquc.rtesU ~t Millbroo~", Ontario, to be the stc.rting and finishing point of his round trip to Kingston for purposes of ~scertainin9 when he was "on the employer's business". And b~sed on the reasoning in the aforeSaid Jurisprudence the employer was entitled to designate the grievor's headquarters in calculating the reimburs~ment 0% his travel expenses. That is to say because the employer placed no restriction on where the grievor chose to reside or dict~ted his me~ns of travel to and from his place of employment while on his own time it could deem his headquarter's location as the point where the employer's business begon ~nd ended. - 14 - Accord1n9ly~ in that li9ht~ the .. employer could not discern any dix%erence between the grievor's situ~tion and the situation of "the e.mbulat.ory employee" discussed in the GSB c~sea. Indeed the employer referred us to the case in Re Masc~tello and Ministry 0% Correction~l Services (1985> GSB 7&2/83 (Brent) as being the same situation as the grievor's. In that case the grievor wes employed as a Probation Officer I who was required as part of the duties and responsibilities of the position to tr~vel from one correctional facility to the other. In order to ascertain the location the grievor commenced to be "on the employer's busi,ness.' :for the purpose of reimbursing him his travel claims, Brampton~ Ontario~ was designated as his "headquarters". When the grievor was later transferred :for a six month period to t~ke tr~in1n9 in a Liaison Officer's posi tion the '.headquarters" location for purposes of making travel claims was changed to Mimico~ Ontario. The Board determined for reasons that we need not describe that the change of headquarters to Mimico did not conf'orm to the requirement 0% "fairness and equity" and therefore reinstated Br~mpton, Ontario~ as the grievor's headquarters for the purpose of determining his travel allowance. The arbitrator clearly stated in re~chln9 this conclusion that the grievor waS not to be reimbursed, irrespective 0% his travelling by car %rom his place 0% residence to Mimico, Ont.ario, for that. portion of the trip ~ ~ - 15 - .. between his headquarters at Brampton and the grievor's place 0% residence. Aceording~y, it was argued in the light 0% Husc~tello that this Board ought to ~pply the same reasoning to the grievor's cleim.. We, 0% course.. do not agre~ that that Jurisprudence and therefore its re~sonin9 has any application to the grievor's circumstance.. Firstly, 'the task 0% desi9n~ting a "headquarters" location for purposes of determining travel status under Article 22.1 is restricted to the specific problem of the ambulatory employee. And Article 38, which represents the entrenchment of the GSa Jurisprudence, clearly restricts the application of the headquarter's principle "to employees who do not attend ~t or work from any permanent Ministry faCility in the course of their duties". In other words, as the trade union argued, the "headquarters" notion has absolutely no relev~nce to the task of determining in the grievor's circumstances where '.the employer's business" began and ended with respect to the legitimacy of his travel claim. And in that reqard, we have hitherto expr~ssed our reasons why travel on the employer's business began ~nd ended in the grievor's circumstance at his place o~ residence. Wh~t ~ppe~rs to be 1~ck1n9 in the employer's argument is any appreciation of the notion, as expressed in its own policy directive~ of the employee on .'travel st~tus" Cuite clearly, the grievor when he travels to and from Duns~ord, !!. e 16 - Ont~rio. to attend work at the Millbrook facility is not on tr~vel st~tua. He ~dmittedly attends work on his own time and chooses the means of travel for that purpose at his own expense. And the gist 0% the arbitral Jurisprudence relied upon by the employ~r relates to the problem of establishing a like c::ontext for the "~mbul8tory" employee. who unlike the grievor. h~s no regular place of employment to which he reports. In both cases however. the daily t~sk 0% travelling to and from work is and ought to be at the employee's own expense. This. however. w~a not the aitu~tion %ocin9 the grievor. He was required to attend a training course at Kingston ~nd w~s ~uthorized to use his own automobile for that purpose. He was not required to report to his regular ploee of employment ~t Millbrook in order to achieve his destination. He began and ended his trip at his residence ~t Dunaford and as such he was on travel at~tua ~t th~t point. As a result he \l8S clearly "on the employer's business" for purposes of JRaking a legitimate travel claim. Moreover. what convinces us' of the correctness of that conclusion is the employer's admission that had the grievor's place of residence been closer_to Kingston than Dunsford, Ontario,. he would h~ve been "on the employer's business" from that point.. Accordingly. we hold that the employer's policy inso%sr as it has been applied to t.he grievor's situation is inconsistent and in conflict with Article 22.1 0% the ~ " il_ tl - 17 - collective agreement and has no force or effect. The e~ployer is directed to pay the grievor hi. clai~ os grieved and we shall re~ain seized for that purpoa.a. Dated this 5th day of 'J~,1988. / { I I ~.. .T P. Klym HI dissent" (Without written reason) "T. Trakalo - Menber