GSB# 2021-0791

UNION# 2021-0271-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Adam Veenendaal Morrison Watts Counsel

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

February 24, 2023

Decision

1At the commencement of the hearing of the instant policy grievance dated 2021, the employer moved that the grievance be dismissed on the grounds that the facts relied upon by the union do not make out a prima facie case to support the violations alleged. This decision deals with that motion.

2The alleged violations, and the facts the union relied on are set out in the following document submitted by the union. The motion was argued on the basis of the facts asserted therein.

1. The grievance form states, in part:

The Union asserts that the Employer, Ministry of the Attorney General, has violated the collective agreement including but not limited to: Article 2 Management Rights (designation of headquarters), Article 11 Headquarters, Article 13 Kilometric Rates, Article 14 Travel Time, and UN 12 Meal Allowance, and further violating any other applicable policy or legislation. The Ministry by disclosure notification is directing OPSEU/SEFPO represented employees to report involuntarily, effective May 31st, 2021 to at least three (3) different temporary work locations in the City of Burlington. All of the captured employees are currently and at all material times were designated by the employer to 491 Steeles Ave. E. Milton, Ontario L9T 1Y7 as their designated and recognized headquarters. The Employer is circumventing the collective agreement as a result.

2. With respect to remedy, the grievance form seeks that the Employer appropriately compensate Employees for any incurred time, travel, or related expenses associated with the temporary relocation to the City of Burlington, full redress, full disclosure, and any other remedy deemed appropriate by the Vice Chair/Arbitrator.

Union’s Particulars

3. In or around October 2020, suspected mould growth was discovered in the courthouse located at 491 Steeles Avenue East in Milton, Ontario the “Milton Courthouse”

4. A subsequent investigation ordered by the Employer concluded that remediation work was required due to the health risks posed by mould discovered in two secure vaults and associated ductwork.

5. On April 26, 2021, the Employer directed all Milton Courthouse staff and stakeholders to vacate the premises for the duration of the remediation work, effective May 31, 2021.

6. On May 21, 2021, Employer provided a revised date of June 14, 2021 by which employees would be required to vacate the Milton Courthouse.

7. Fourteen (14) OPSEU-represented employees of the Halton Crown Attorney’s office, Criminal Law Division, were affected by the Employer’s order to relocate: Phyllis Rismay, Nickisha Lee, Yohne Yogeswaran, Anwuli Chinaka, Joan Patterson, Shea Thomas-Malcolm, Eva Anderson, Dianne Cormier, Marisol Avalos, Ekta Sharma, Debra Paglia, Anand Shah, Heather Roberts, and Asad Medjdov.

8. These employees were directed to work at the Burlington Convention Centre and Courtyard Marriot hotel located at 1120 / 1110 Burloak Drive in Burlington, Ontario (the “Alternate Work Site”).

9. The Alternate Work Site is located approximately 22 kilometres from the Milton Courthouse, which is the designated headquarters of the affected OPSEU employees.

10. The affected OPSEU employees were not compensated under Articles 13 or 14 of the collective agreement for the additional travel required to work from the Alternate Work Site, nor did they receive a Meal Allowance under Article 12.

11. The remediation work on the Milton Courthouse was scheduled to be completed in September 2021.

12. On June 15, 2021, OPSEU Local 271 filed grievance # 2021-0271-0001 in response to the Employer’s direction to work from the Alternate Work Site.

13. The affected OPSEU employees worked from the Alternate Work Sites from approximately July 22, 2021 to March 31, 2022.

3The legal principles that govern no prima facie motions are well established in the Board’s jurisprudence. See, Re Martin et al, 2013-3579 (Anderson), 2015 CanLII 60449; Re Couture et al, 2008-3329 (Dissanayake), 2011 CanLII 100922. In summary, the moving party must establish that the facts asserted in support of the grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged, and that opinions, arguments, or conclusions do not constitute assertions of facts for this purpose. Also for purposes of these motions alleged facts that are “patently ridiculous or incapable of proof”, are not accepted as true. Nash v. Ontario (1995). 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 Ont.CA), cited in Re Martin (supra) at para. 5.

4Based on the facts asserted by the union, from May 2021 the Milton Court house, where the employees regularly worked and was their headquarters, was shut down due to a health and safety issue, and the employees were directed to work temporarily at two locations in Burlington, a distance of 22 kilometres from the Milton Court House. They worked in Burlington from July 22, 2021 to March 31, 2022, before returning to the court house, after the mould issue had been remedied.

5The employer’s position was that the asserted facts, if accepted as true, cannot support a violation of any of the provisions relied on by the union. Counsel submitted that for the Board to find a violation of article 2, the management rights clause, the union must establish that some substantive right of the employees under one or more of the articles relied upon were denied or infringed. Counsel addressed each of the provisions alleged to have been violated.

6Article 11. 1 reads:

This article applies to employees who do not attend at or work from any permanent ministry facility in the course of their duties, but for whom a permanent ministry facility or other place is designated as an employee’s “headquarters” for the purposes of the provisions of this Central Collective Agreement and of various allowances which require a headquarters to be specified.

Counsel submitted that it is clear that this article applies only to employees who do not work from any permanent ministry facility. There is also no assertion that any other place was designated as their headquarters. Therefore, it does not apply to these employees who worked at a permanent facility, the Milton Court House. The claim under article 11, therefore, must fail.

7Article 13, 14 and UN 12

Counsel submitted that the kilometre rates under article 13, travel time under article 14 and meal allowance under article UN 12 also do not apply. Article 11.4 provides that an employee’s headquarters may be changed if the employee is assigned to a work location which is at least 40 kilometres by road from his or her existing headquarters. The distance, from these employees’ existing headquarters in Milton to Burlington where they worked temporarily was only 22 kilometers. Travel time under article 14, in any event is payable when an employee uses his or her own vehicle to perform work. These employees did not do that. Therefore, their headquarters did not change at all, and they were not entitled to additional compensation under any of the provisions the union relies on. Re OPSEU and the Ministry of Solicitor General and Correctional Services 1154/98, (Leighton) and Re Beaton 1392/88 (Samuels) were cited by the employer.

Union Submissions

8The union’s primary position was that, although not documented, once the employees were moved and commenced to work from Burlington, the Milton Court House ceased to be their headquarters. The Burlington locations, the Convention Center and the Marriott Hotel, became their designated headquarters until they returned to work at the Milton Court House. Therefore, article 11.1 applied for that period.

9Union counsel submitted in the alternative, that the circumstances in this case were unique, and therefore, the Board should follow the approach taken by the Board in Re Nickel, 1539/97 (Watters).

10In Re Nickel, two employees grieved that by directing them to work at different locations, the employer had changed their headquarters, and did so without complying with article 11 of the collective agreement. Both parties agreed that the grievors were not covered by article 11, since it applied only to employees who do not work at a permanent ministry facility, and that the Ontario Clean Water Agency where they worked was a permanent ministry facility. They therefore agreed that their headquarter did not change.

11Vice-Chair Watters accepted the union’s submission that given that agreement, “the real issue in this case was what, if any, benefits accrue to the grievors when the employer directed them to report to a workplace other than their headquarters.”

12The Board in Re Nickle received detailed evidence about the inconvenience and additional expenses the grievors experienced as a result of not working at their headquarters, having organized their lives expecting that they will be working in Milton. Detailed evidence was also led by the union that the employer did not consider the impact on the grievors, when it decided to change their work location, and that the employer had other options which would have avoided the adverse impact on the grievors, and in fact would have made the work more efficient and less costly.

DECISION

13The fundamental issue is whether or not there was a change in the grievors’ headquarters, accepting the asserted facts as true. The union submits that the Burlington locations became their designated headquarters under article 11.1 during the period they worked at the Burlington sites. I cannot agree. If the union is correct, it would mean that anytime an employee who works at a permanent Ministry facility as his/her headquarters is temporarily required to work at some other location, that other location becomes his/her new designated headquarters for the duration of that temporary period. This would trigger all of the consequences that flow from a change of headquarters. That would be completely inconsistent with the language of article 11, which clearly states that it only applies to employees who do not work at a permanent ministry facility. The grievors did work at a permanent ministry facility. Therefore, article 11 had no application and the employer could not have violated article 11.

14In Re Nickel, unlike here, the parties had agreed that the grievors’ headquarters was in Kingston, Ontario; that they worked at a permanent ministry facility; and that their headquarters did not change when they were directed to work at other locations on a rotational basis. At p. 31, the Board acknowledged that the employer was entitled to reorganize staffing in that manner for business reasons in the exercise of its management rights under article 2. However, it went on to state that, “such exercise was subject to other applicable provisions of the collective agreement, article 13, 14 and Appendix 3”, and that “such exercise also demanded that the employer consider the impact of the grievors’ headquarters being located in Kingston”.

15In justifying its actions, the employer in Re Nickel led evidence through a Human Resources Advisor, Ms. Anne Thornton, that in not extending the benefits claimed by the grievors the employer had followed an unwritten practice to the effect that travel time and meal allowances are payable only if the employee’s new work location is more than 40 kilometers from his/her headquarters. At p. 26, the Board wrote:

I have not been persuaded that the grievors' claim for kilometers and time can be determined on the basis of the Employer's "Forty (40) Kilometer Rule", as described by Ms. Thornton. Firstly, I note that it is an unwritten practice. During the course of the hearing, the Employer did not seek to explain how or why it was developed, nor how such practice meshed with other provisions found in the collective agreement. Equally as significant, I note that it has been applied in an inconsistent fashion as Mr. Nickel, himself, was permitted to travel to and from Odessa in the period February to May, 1997 in a company vehicle and on company time. The difficulty with the practice is that it forces an employee to shoulder all of the extra mileage costs and travel time when the work location is moved less than forty (40) kilometers away from headquarters at the Employer's initiative. This result would seem inconsistent with the basic concept of headquarters, as canvassed above, and creates a threshold for entitlement under articles 13 and 14 which is not contained within the articles themselves.

16The Board reviewed the evidence and ordered that the employer pay travel time and meal allowances to the grievors, where those claims otherwise met the requirements of the collective agreement. It was held that those benefits could be denied by on the basis of an unwritten rule or practice the employer had established.

17I find that the crux of Board’s decision was to the effect that the employer was not entitled to establish a practice or a rule of its own establishing a distance threshold as a condition for eligibility for benefits. Thus the Board noted that such a threshold was not contained in the collective agreement in force at the time.

18Vice-Chair Watters cited with approval, Re Mascatello. 762/83 (Brent), as the authority with the closest resemblance to the evidence before it, and wrote: “It is clear from a review of the award that in reaching the above decision the Board considered that the employer had assumed an obligation to treat employees fairly and equitably in the administration of travel expense claims”. The Board reviewed the evidence of the inconvenience and adverse impact the employer’s decision had on the grievors, and at p. 32 the noted the steps the employer could have taken “without prejudicial effect on its operation”.

19It is clear from the awards in Re Mascatello, as well as Re Nickel, that the Board ordered payment of travel time and meal allowances in those cases because the Board determined that having unilaterally established an unwritten 40 kilometre threshold which is not part of the collective agreement, the employer had a duty to be fair and reasonable in applying it to individual employees.

20The circumstances before the Board in the instant matter is vastly different. The 40 kilometre threshold is no longer a mere practice. It is part of the collective agreement, not an exercise of discretion. Article 11.4 provides that an employee’s headquarters may be changed by the employer only where he/she is assigned to work in a work location “at Least forty (40) kilometers by road form his or her existing headquarters”. These employees did not meet that threshold stipulated in the collective agreement. The basis for the decisions made in Re Mascatello and Re Nickel no longer exists. Therefore it follows, that they are not entitled to travel time pay under article 14 or meal allowance or travel expenses under article UN 12, when travelling to work between their headquarters and residence. Nor are they entitled to kilometre rates under article 13.1.

21For purposes of the motion the board accepts that the affected employees experienced inconvenience and incurred additional expenses in managing their personal/family affairs, during the period they were not working at Milton. However, that does not provide the Board with jurisdiction to disregard the provisions of the collective agreement on fairness and reasonableness grounds.

22Therefore, the Board must agree with the employer that the asserted facts cannot support a violation of any of the provisions of the collective agreement.

23The employer’s motion is, therefore, upheld. The grievances are hereby dismissed.