GSB# 2018-0919; 2018-2516; 2019-0560; 2020-2126; 2021-0477

UNION# 2018-0368-0101; 2018-0119-0008; 2019-0252-0010; 2020-0411-0015;

2021-0252-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGillvray et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

May 11, 2022

Decision

Introduction

1This matter involves the eligibility of Correctional Officers for the payment of meal allowances for periods when they are engaged in escorting inmates in the community. A common example would be escorting of inmates to visit a hospital. There are five grievors: Kenny McGillvray, Jaimie Serf, Mathew Roth, Goce Vasileski and Michael Valovitch. The grievances proceeded under the provisions of Article 22.16 of the Collective Agreement, which provides in part at paragraph 22.16.7 that, “Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.” Here, the parties confirmed that this decision will have no precedential value.

The Evidence Before Me

2The parties agreed to proceed on the basis of what was essentially a joint Book of Documents, it being understood that the documents were to be taken at face value for the purposes of this decision alone.

3Meal Allowances for Correctional Officers are provided for in Article COR12. The parties referred to the following paragraphs of Article COR12:

COR12.1.1 An employee who continues to work more than two (2) hours of overtime immediately following his or her scheduled hours of work without notification of the requirement to work such overtime, prior to the end of his or her previously scheduled shift, shall be reimbursed for the cost of one (1) Meal to eleven dollars and twenty-five cents ($11.25) except where free meals are provided or where the employee is being compensated for meals on some other basis.

COR12.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his or her work place.

COR12.2.1 Cost of meals may be allowed only:

COR12.2.2 If during a normal meal period the employee is traveling on government business other than:

(a) within twenty-four (24) kilometres of his or her assigned headquarters, or

COR12.2.5 In accordance with the Employer’s Travel, Meal and Hospitality Expenses Directive, as revised August 2006, which shall not be altered for this bargaining unit without the consent of OPSEU, reimbursement rates for meals, including taxes and gratuities, are the following:

Breakfast $ 8.75

Lunch $11.25

Dinner $20.00

COR12.7 Costs of meals will not be allowed in cases where meals are made available by the Employer at no cost to the employee, except in circumstances where an employee is required to follow a particular diet which has been medically prescribed or is mandated by the employee’s religion and the Employer does not provide meals which meet the requirements of that diet.

4The parties agree that COR12.2.5 incorporates the Employer’s Travel, Meals and Hospitality Directive, the relevant portions of which read as follows:

6.0 MEALS

Rules

Reasonable and appropriate meal expenses may be reimbursed. You may incur a meal expense when you are on government business and you:

• are away from the office area (i.e., at least 24 km) over a normal meal period, or

• have prior approval for the expense (e.g., a business meeting within the office area that must occur over lunch – see FAQs.

Meal expenses will be reimbursed at the established meal reimbursement rates, regardless of the actual meal costs. This is a meal allowance. Taxes and gratuities are included in the meal reimbursement rates. Receipts are not required to be submitted with meal claims or retained.

Meals must be purchased in order to be able to submit a claim for reimbursement. Alcohol cannot be claimed and will not be reimbursed.

In limited and exceptional circumstances (e.g. health considerations; limited options available) where a meal expense is higher that the meal reimbursement rate, the actual cost of the meal may be reimbursed. In these situations, the claim for meal reimbursement must be accompanied by an original itemized receipt and a written rationale for exceeding the rate. A credit card slip is not sufficient. Approval is subject to managerial discretion.

There may be situations where an individual pays the meal expenses for a group of individuals. In such cases, the individual may be reimbursed for the total of all meals purchased at the reimbursement rate for that meal. Group meal expenses can be claimed only:

• by the most senior person present – expenses cannot be claimed by an individual that are incurred by his/her approver, and

• for individuals covered by this Directive.

Reimbursement is for restaurant/prepared food only. Reimbursement for groceries must have prior approval. A receipt and a written rationale must be submitted with the claim (see FAQ’s).

Reimbursement will not be provided for meals consumed at home or included in the cost of transportation, accommodation, seminars or conferences.

If you travel as a regular part of your job, your meals will not normally be reimbursed unless you have obtained prior approval.

5The actual rates paid for each meal (breakfast, lunch, dinner) were not addressed at the hearing; they are governed by the Directive, any changes being subject to the consent of OPSEU. Accordingly, the rates paid are set out in the current Directive.

The Issues Before Me

6The parties agreed that there were four issues involved, in the form of questions to be answered. They said that the resolution of those questions would provide them with guidance that would assist them in determining the outcome of the instant grievances. In effect, the answers would provide them with a framework of rules to be applied. Those questions are as follows:

1. Should the day shift and the night shift for escorts be treated in the same way with respect to the allocation of meal allowances?

In advance of the hearing the Employer agreed that the two shifts should be treated the same way, subject to its position that there should only be one meal allowance for either shift.

2. What number of meal allowances should the employee receive during their escort shift?

The Employer’s position is that only one meal allowance should be paid per shift. The Union’s position was that there should be three meal allowances for a twelve-hour shift and two meal allowances for an eight-hour shift. The Union submitted, in the alternative that no fewer than two meal allowances should be paid for a shift.

3. Are employees obligated to purchase a meal to be entitled to the meal allowance?

In advance of the hearing the Union concede that there must be the purchase of a meal. It noted that “meal” is not defined in either the Collective Agreement or the Directive. The amount of the purchase need not be the exact amount that the collective agreement and the Directive proscribe as the maximum, and there is no obligation to provide a receipt for the purchase.

4. Does the employee have to travel beyond 24 kilometers in order to be entitled to receive a meal allowance?

In advance of the hearing the Union conceded that the employee did have to do so.

7It is important to note that the parties reserved all rights with respect to whether there might be other, different factors to litigate following their application of these four rules to the individual grievances. That is, I retain the jurisdiction to give final and binding decisions on these grievances. Also, the Employer voiced a concern that the propriety of which meal allowance was being claimed, breakfast, lunch or dinner, might be impacted by the time of the shift. It was agreed that in the event that I determined that I required the submissions of the parties on this point, I would request those submissions. In the result, I do not require those submissions at this juncture.

The Submissions of the Parties

8The parties went on to make their submissions on the outstanding issues. They were further agreed that there is a dearth of jurisprudence on these issues. They submitted only one case for my consideration: OPSEU (Carey) and Ministry of Community Safety and Correctional Services, (GSB #2017-1626, Vice-Chair D.J.D. Leighton, February 23, 2018, CanLII 14324 (ON GSB). That decision is brief enough to be cited in its entirety. I note that it too was decided in accordance with Article 22.16 of the Collective Agreement. Further, at paragraph 4, it states that the parties “…asked that I issue a decision without precedent or prejudice, and without written reasons.” Accordingly, I am of the view that it can make no contribution to the determination of these grievances. However, it reads as follows:

1Mr. Ian Carey, a Correctional Officer at the South West Detention Centre, filed a grievance on March 17, 2017, alleging that the employer breached the collective agreement by failing to reimburse two meal claims for breakfast and lunch, when he was assigned to escort duty for 0500 to 1300 hrs on February 10, 2017. He alleges that this denial breached the employer’s policy directive, “MBC Travel Meal and Hospitality Expenses Directive (January 1, 2017) which provides that when an employee is on government business at least 24 km. from his or her normal work site over a normal meal break, the meal allowance will be granted. Rule 6.0 of the policy as follows:

Reasonable and appropriate meal expenses may be reimbursed. You may incur a meal expense when you are on government business and you:

• Are away from the office area (i.e. at least 24 km) over a normal meal period; or have prior approval for the expense…

2The union submitted that the grievor was at least 24 km away from the worksite during the normal breakfast and lunch break and therefore should have been reimbursed for the expense. The union noted that the normal breakfast break was less than 0800 hrs and lunch was between 1130 and 1300 hours. The union noted further that the policy does not define “normal” meal breaks.

3The employer’s response to the breakfast claim was that the grievor should have eaten before his shift began at 0500 hrs. the employer submitted that there was no violation of the collective agreement and the decision not to grant the meal allowances was appropriate in the circumstances.

4The parties referred this grievance to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the hearing, the parties agreed that I had the jurisdiction to deal with this matter. They asked that I issue a decision without precedent or prejudice, and without written reasons.

5Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I have decided to grant this grievance. The employer is hereby ordered to pay the grievor for a breakfast and lunch allowance.

9The Union submitted here that pursuant to article 12.2.2. employees are to be reimbursed for meals that fall within a “normal meal period”. It said that that term is not defined in the collective agreement. It submitted that the meaning will differ depending on the time of the shift. It submitted that I should consider the Carey case, and in doing so be persuaded that Vice-Chair Leighton rejected the Employer’s submission, made before her, that the employee ought to have eaten before the start of that shift and that the decision supports the Union’s submission that the “normal meal time” will depend on the applicable shift. Given Vice-Chair Leighton’s decision to award two meal allowances for that eight-hour shift, the Union, in essence, extrapolates here that a twelve-hour shift would attract three meal allowances; that is, it would be “normal” to have three meal periods in a twelve-hour period. It said that people would normally have two meals in an eight-hour period and three meals in a twelve-hour period.

10The Union also took support from the Employment Standards Act, 2000 S.O. 2000, CHAPTER 41 section 20(1):

Eating Periods

20 (1) An employer shall give an employee an eating period of at least 30 minutes at intervals that will result in the employee working no more than five consecutive hours without an eating period. 2000,c.41,s.20(1).

11The Union acknowledged that the Crown in Right of Ontario is exempt from the minimum standards of the ESA. Nonetheless, it submitted that this provision represents good public policy that should be ported over to assist in the interpretation of the collective agreement. Such an approach would require two “eating periods” or “normal meal periods” in an eight-hour shift and three in a twelve-hour shift. It noted that if paragraph COR 12.1.1.5 applied to an eight-hour shift, as per Carey, the extra meal for working two more hours on top of an eight-hour shift would generate three meal periods in a ten-hour work day. On that analysis the collective agreement should be interpreted on the basis of requiring a meal period every five hours giving two meal periods in an eight-hour shirt and three meal periods in a twelve-hour shift.

12The Union also briefly reviewed the circumstances of each of the grievors. In my view, and in accordance with my present remit, that consideration is to be left to the parties in applying my decision on the four framework rules as set out in my reasons below.

13The Employer reiterated that this matter is being determined pursuant to article 22.16, with the proviso that I answer the four questions put to me. It noted that Carey was also decided under article 22.16, and, further, it was decided as part of the summary process whereby Vice-Chairs hear matters in the institutions, which process is colloquially known as “the road show”. The Employer submitted that I reject the disposition in Carey and adopt the submission that there can be only one meal allowance per shift. In essence, the Employer here took the same position as in Carey that only reasonable and appropriate meal expenses may be reimbursed. It said that interpreting “normal meal period” as used in the collective agreement is an objective exercise. It submitted that in the normal course one would eat a meal before and after a shift and eat one meal during the shift. It noted that those working in the institutions themselves have a single meal period, and there is no reason that it would be any different on an escort shift outside of the institution. The Employer submitted that Carey could not be used for any guidance since it was an outlier to the rule and contrary to an objective standard. The Employer also submitted that the extra meal provided by COR 12.1.1, when an employee works more than two hours overtime would not be necessary if the intention of the parties was that employees would receive two or three meal periods during the shift. Accordingly, it was submitted that the inclusion of COR 12.1.1 indicates that the parties intended only one meal period during any shift. It said that the meal period doesn’t change if the employee is inside or outside the institution, whether it is an eight-hour or twelve-hour shift.

14In reply, Union counsel submitted that he was instructed that most institutions combine the two fifteen-minute breaks into a second 30-minute meal period. It reiterated that although the ESA does not apply to the Employer, it remains good public policy, which may act as guidance for the matters herein. Finally, it submitted that there is no dispute that employees on escort duties get compensating time for the meal periods that they cannot actually take because they must remain in control of the inmate they are escorting, but that does not alter the public policy represented by the ESA, which would result in employees on escort duty receiving three meal allowances.

Analysis and Brief Reasons

15This matter involves the interpretation of the collective agreement. Any such interpretation takes at first instance the plain meaning of the words settled on by the parties to express their intended result. COR12 does not define meals, other than by the reimbursement amounts calculated for “normal meal periods”. There is also no reference to any differentiation as a function of the length, or time of day, covered by a shift.

16Because reimbursement is a cost to the Employer, it would generally be expected that clear language would be used to express the parameters of that cost. The collective agreement provides a bare framework regarding meal allowances. The parties agree that COR12 incorporates the Travel, Meals and Hospitality Directive, which is a more detailed exposition of the circumstances in which an allowance for meals will be provided.

17Firstly, the Directive sets out that reasonable and appropriate meal expenses may be reimbursed. The parties agree that to qualify an employee must be greater than 24 km away from “the office area”, meals must be purchased, receipts are not required, and reimbursement is for restaurant/prepared food.

18In my view, the Directive is primarily pre-occupied with the meal expense being “reasonable and appropriate”’, the result of which is that there is no calculation that supports a rigid view of the number of meal periods that exist, a priori, in a given shift.

19Of the four questions remitted to me for determination, only question number two remains to be decided, given the concessions made by the parties in advance of the hearing. The Directive admits of flexibility in its application, which flexibility of application generally requires prior approval or the exercise of a managerial discretion. Accordingly, there can be no rigid rule as to the number of meal periods that might “normally” fall within a given shift. However, there are general parameters that would be "reasonable and appropriate".

20Generally speaking, an eight-hour shift is of such duration that one would expect a single meal break. In that regard it would be reasonable to expect that an employee would have a meal before, in the middle of and after an eight-hour shift. Accordingly, where a meal allowance is provided for, it would be applicable to the middle meal period. The time of day within which the middle meal break falls might inform whether the allowance would be at the breakfast, lunch or dinner rate. However, as set out above, the parties did not address which meal allowance would be applicable.

21As for a longer shift, such as a twelve-hour shift, which I understand to be a common length of shift in corrections, one would still be expected to take a meal break before and after the shift, on your own time. However, again, generally speaking, it would not be reasonable to expect an employee to work for twelve hours with only one meal break. A single meal break in an eight-hour shift anticipates four consecutive hours as the work period between meals, given that the employee is eating on his or her own time before and after the shift. Accordingly, on a twelve-hour shift, a second meal period would reasonably be required at the eight-hour point in the shift. That is, meal periods at the four-hour and eight-hour points in a twelve-hour shift would be “reasonable” in compliance with the directive, and “normal” in compliance with COR12. Again, the time of day within which the meal periods fall might inform whether the allowance would be at the breakfast, lunch, or dinner rate.

22This formulation of four hours between meal breaks provides a better benefit than the minimum standard set out in the ESA, of no "more than five consecutive hours without an eating period." It also dovetails neatly with COR12.1.1. In interpreting a collective agreement provision, it is important to look at the whole article in order to maintain overall harmony.

23In the result, I answer the four questions remitted to me as follows:

1. The day shift and night shift for escorts are to be treated in the same way with respect to the allocation of meal allowances.

2. An employee on an eight-hour shift is eligible for one meal allowance and an employee on a twelve-hour shift is eligible for two meal allowances.

3. Employees are obligated to purchase a meal to be entitled to a meal allowance.

4. An employee has to travel beyond 24 kilometres in order to be entitled to receive a meal allowance.