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HomeMy WebLinkAbout1982-0203.Barnes.83-01-25IN THE bL4TTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Fred Barnes) Griever - and - The Crown in Right of Ontario (Ministry of itatural Resources) Employer R. L. Verity, Q.C. Vice Chairman I. J. Thomson Member D. B. Xiddleton 3lember N. Luczay Grievance Officer Ontario Public Service Employees Union J. D. Quinn Supervisor Staff Relations Ministry of Natural Resources November 3, 1982 - 2 - DECISION In a Grievance dated February 15th, 1983, the Grievor, Fred Barnes, alleges "unfair and discriminatory treatment" by the Ministry as a result of its denial of payment in the sum of $50.40 for mileage expenses incurred by the Grievor in the use of his personal automobile. The facts are was employed by the Min i' Department of the Linds not in dispute. The Grievor stry in the Finance Administration y office in the classi f a, Clerk 3 General. At the time of the Grievance had accumulated some 33 years of service with t ication of the Grievor he Ministry. In October of 1981, the Grievor and a fellow employee Gerald Hall were directed to attend a pre-retirement seminar at the Skyline Hotel in Toronto f r om Monday, October 26th to and including Thursday, October 29 t h, 1981. The Ministry made provision for a government car to be driven by Mr. Hall for the purposes of transporting Mr. '3 a rnes, Mr. Hall and their respective spouses from Lindsay to Toronto and return. Prior to the seminar, the Grievor made arrangements with his Supervisor Alan Kaufman to take Friday, October 30th as a vacation day to enable him to visit his son in Hamilton. The Grievor preferred to use his own personal vehicle rather than the government vehicle. The Grievor candidly admitted in - 3- Examination-In-Chief that "I believe I was told that if I took my own vehicle I would not be paid mileage". Both Messrs. Barnes and Hall and their spouses attended the pre-retirement seminar in Toronto. Mr. Hall and his car, wh i automob wife took advantage of the provision of the government le Mr. Barnes -and his wife utilized their family ile. At the Hearing, the Ministry introduced a pre objection to the effect that the Board had no jurisdict determine the issue. Briefly, Mr. Quinn argued that th iminary on to re was no allegation of a violation of the Collective Agreement in the Grievance Form, and that the only possible Article that could be relevant, namely Article 22 was inapplicable in the fact situation. Mr. Luczay argued that Article 22 had been violated in the instant Grievance, and that the Board had jurisdiction to determine the applicability of Article 22. We reserved judgement on and proceeded to hear the evidence the preliminary objection On the merits of the prel iminary objection, this panel of the Board adopts the rationale of Professor Swan on the issue of jurisdiction-of the Grievance Settlement Board as stated in Haladay and Ministry of Industry & Tourism, 94/78 where the Vice-Chairman states at page 3: .r I .:, - :. - 4 - II . . . We should note that our jurisdiction is statutory only, and has two main branches. First, we are vested.with jurisdiction to hear and determine disputes about the in- terpretation, application, administration or alleged contravention of the collective agreement; this jurisdiction arises under s. 18 of the Crown Employees Collective Bargaining Act. Second, beyond that juris- diction and independent of it, we have the jurisdiction set out in s.17(2)..." Although the form of the instant grievance is remarkably brief in the allegation of "unfair and discriminatory treatment" there can be no doubt that the Employer was aware from the outset that this Grievance dealt with an alleged violation of Article 22. Accordingly, we are of the opinion th.at defects in form will not deter the Board from adjudicating on the merits (See Fournier 86/76.). We find that this Grievance is arbitrable on the basis of an alleged contravention of the Collective Agreement. Article 22 of the Collective Agreement reads: "ARTICLE 22-MILEAGE RATES EXPRESSED 0 IN KILOMETRES 22.1 If an employee is required to use his own automobile on the Employer's business the following rates shall be paid effective April 1, 1980: Kilometers Southern Northern Driven Ontario Ontario 0 - 4,000 km 17.0b/km 17.5c/km 4,001-12,000 km 14.0dlkm 14.5C/km 12,001 km and over 11.5c/km 12.0c/km 22.2 Kilometers are accumulated on the basis of a fiscal year (April 1 to March 31, inclusive). 22.3 Attached hereto as Appendix 5." Also of relevance is Section 4.9 of the Employer's Manual of Administration (Exhibit 3). That Section reads: "4.9 Personal Cars -- When it is to the adv.antage of the Government, employees may be permitted to use their personal cars on Government business. Reimbursement shall be based on the rates establish~ed in Section 4.11 of this policy. When a more economical mode of transportation is a practical alternative to the use of a personal car, the employee may be permitted to use his/her personal car provided that reim- bursement is based on the cost of the more economical mode. No reimbursement shall be made for the use of a personal car if a Government car can be used. If more than one person can reasonably be expected to travel together, reimbursement shall only be made for one car." In a consideration of the merits of the instant Grievance, there can be no doubt that Article 22 gives to the Employer the right to determine the circumstances where an Employee is required to use his personal automobile on the Employer's business. In our opinion, Article 22 does not afford an Employee the right to make that determination. Accordingly, the Employer has formulated a policy to determine when personal vehicles may be used by employees. That policy is clearly stated in Section 4.9 of the Ontario Manual of Administration cited above. We cannot accept Mr. Luczay's argument that the Grievor was required to use his personal motor vehicle because of the fact that his eventual destination was Hamilton rather than Toronto. The evi, business required the - 6 - dence is clear that the Employer's Grievor to travel to Toronto and that the Grievor's eventual destination of Hamilton was for his own personal reasons. A Government car was made available by the Ministry for the Grievor and Mr. Hall and their wives to travel to Toronto and return, The Grievor's deci sion not to utilize that government car was understandable in the circumstances, but was also unrelated to the Employer's req,ui rements. In the circumstances, it would have been improper for the Ministry to have reimbursed the Grievor for mileage expenses having regard to government policy which reads in part: "No reimbursement shall be made for the use of a personal car if a Government car can be used." In the resu the provisions of Art t, we are unable to f cle 22 of the Collect ion of nd any violat ve Agreement. There- fore, this Grievance is dismissed. DATED at Brantford, Ontario, this 25th day of January, A.D., 1983. R. L; Verity, Q.C. -- Vice-Chairman 8: 3700 J. Thomson -- ?!ember