GSB# 2007-0277
UNION# 2007-0551-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Ritchie)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Kirsten Agrell Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Ryan Conacher Counsel Ministry of Government and Consumer Services
HEARING
April 14, 2008.
Decision
The Proceedings
In this grievance, OPSEU claims that Dawn Ritchie, a Probation and Parole Officer, is entitled to mileage, meal and travel time expenses, while she was backfilling a temporary vacancy in the Burlington Probation and Parole Office from June 2004 to December 11, 2006. By a previous decision, her claim was limited to the fiscal year 2006 – 2007 on the basis of timeliness of filing the grievance.
The Facts
There is no material dispute on the facts, and I find them to be as follows. Ms. Ritchie became a classified Probation and Parole Officer (hereafter, PO) on April 8, 2004. Her home position was at the Parkdale Probation and Parole Office. She took up a temporary assignment at the Toronto Youth Assessment Centre (hereafter TYAC), which operated at a location away from the Parkdale Office. Nonetheless, she was required to attend monthly meetings at the Parkdale Office. During this time she became estranged from her husband, Ted Kift, who was also a PO working out of the Parkdale Office. She found it uncomfortable to be present in the Parkdale Office for that reason. It is common ground that their interactions did not create circumstances that ought to have engaged the grievance or WDHP processes. However, when her position at TYAC came to an end in June 2004, she expressed to her supervisor, Donna Sverdrup, her concerns about returning to the Parkdale Office and asked if she might be able to go to a different office. She had very low seniority and little prospect of a lateral transfer. Ms. Sverdrup made enquiries and advised Ms. Ritchie that there was a temporary PO assignment in Burlington. Ms. Ritchie accepted that assignment, which was to backfill a vacancy which existed because the incumbent was backfilling a position elsewhere. As is often the case, at the end of the six-month temporary vacancy, the situation remained the same and Ms. Ritchie was periodically renewed in Burlington until the position was permanently filled on December 11, 2006.
During her time in Burlington from June 2004 to December 11, 2006, Ms. Ritchie made a number of requests for lateral transfers in order to work closer to home. She lived near the Mississauga Office, which is located close to Hurontario Street and The Queen Elizabeth Way. Her distance from home to the Burlington Office was approximately 37 km. Her trip to the Parkdale Office had been approximately 18 km.
In addition to the lateral transfer requests, on May 27, 2005, Ms. Ritchie also made a formal “Request for Accommodation for Personal Family Circumstances/Child Care Accommodation”. That request was made after she declined a union-approved lateral transfer to the Jane Street Office on March 29, 2005. The distance from her home to that office was approximately 21 km. No issue of failure to accommodate arises in this case. Seemingly, when the Burlington position became vacant the Union was asked if it would waive the seniority preference given on lateral transfers in order to accommodate Ms. Ritchie. The Union declined and the position went to Gord Longhi. He appeared at the hearing before me as a representative of the Union.
Ms. Ritchie moved to a permanent position at the Mississauga Office on December 11, 2006 when Mr. Longhi took over the Burlington position. Her successful move to Mississauga was most circuitous. Seemingly, her estranged husband obtained the position as a lateral transfer from the Parkdale Office. She and he then agreed to swap jobs. He took her home position at Parkdale and she took his lateral transfer to Mississauga. That is how Ms. Ritchie ended up at the Mississauga Office as of December 11, 2006.
On February 8, 2007, she filed a grievance claiming mileage, meal expenses and travel time for the period of time she spent in Burlington.
The Submissions of the Parties and Reasons for Decision
Union counsel made careful, complete and structured submissions to the effect that Ms. Ritchie may have wanted to go to an office other than Parkdale; however, the Employer selected Burlington, and it must bear the consequences of that choice, which requires the payment to Ms. Ritchie of the expenses claimed.
I prefer the submissions made on behalf of the Employer. Article 13 of the Collective Agreement governs reimbursement for mileage. The salient portion is:
13.1 If an employee is required to use his or her own automobile on the Employer’s business the following rates shall be paid…
First, on any interpretation of these facts, the employer did not require her to use her automobile to commute to the Burlington Office any more than for her commute to Parkdale or TYAC. The Union’s submission was that the requirement came about because of the Employer having posted her temporarily to the Burlington Office. It is not the characterization of the posting as temporary or permanent that triggers entitlement, it is that the Employer requires the use of the automobile on its business. The Employer did not require her to take the Burlington position. She was not traveling as a consequence of a decision taken by the Employer for business reasons. She asked not to return to Parkdale for personal reasons that did not amount to formal accommodation. She was offered Burlington on a temporary basis and she accepted that position. Had she been in Burlington as part of a formal accommodation, her contribution, and that of the Union, might well have been to forego entitlement to the expenses.
Article 14 of the Collective Agreement deals with time credits while traveling. The salient portion is:
14.1.1 Employee shall be credited with all time spent in traveling outside of working hours when authorized by the ministry.
Ms. Ritchie’s travel time was her commuting time to and from her job. The Employer was not asked to, and it did not, authorize this travel. Nor can authorization be inferred. These circumstances do not engage this article. There was no business purpose in this travel other than that of every other employee going to and returning from their workplace.
Meal allowances in this matter are governed by the Correctional Bargaining Unit Collective Agreement at article COR 12.2.2:
COR 12.2.2 If during a normal meal period the employee is traveling on government business other than:
(a) on patrol duties …, or
(b) within twenty-four (24) kilometers of his or her assigned headquarters, or
(c) within the metropolitan area in which he or she is normally working;
Ms. Ritchie was traveling to and from work at the beginning and end of her shift. Her normal breakfast and dinner meal periods would be before and after she traveled to and from work, respectively. For those meals Ms. Ritchie was not traveling during a normal meal period and she was not traveling on government business. During the lunch meal period she was within the municipality where she normally worked, so was exempted by subsection (c).
The Decision
The grievance is dismissed, despite the able arguments advanced by the Union. The fact is that Ms. Ritchie chose to go to Burlington. The Employer did not require her posting there.
Dated at Toronto, this 18th day of April, 2008.