P-2004-0089
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Brian Melville
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVOR
Brian Melville, Grievor and Gary Tome, Mimico Correctional Centre
FOR THE EMPLOYER
George Parris Counsel Ministry of Government Services
HEARING
November 15 and December 5, 2005.
Decision
This decision deals with the grievor’s November 7, 2003 grievance, which claims that he is entitled to ongoing travel time, mileage and lunches between his home in Oshawa and Mimico Correctional Institute, retroactive to October 20, 2003. In final argument, he also asked for compensation for damage to his vehicle and reimbursement of sick credits because of the effects of the long commute on his vehicle and health. The employer denies that there is any basis for these claims in the grievor’s terms and conditions of employment.
The employer made a preliminary motion arguing that the matter was out of time, as it had been filed several days beyond the fourteen days set out in section 34(1) of The Public Service Act. As I ruled orally at the hearing, the matter is properly considered a continuing grievance, and thus the Board proceeded to hear the merits.
This dispute is set against the background of a series of documents and agreements related to the grievor’s assignments since 1997. The earliest of these is a letter to the grievor dated April 22, 1997 from District Administrator Gary Commeford which reads as follows:
This letter will serve to confirm that you will be starting a Temporary Assignment at the Toronto Jail on Monday, April 28, 1997. This assignment will be as an OM 16 and will last up to two (2) years. Your home position will continue to be an OM 16, at the Metropolitan Toronto East Detention Centre. While you will remain eligible to receive any salary adjustments and/or Merit increases as may become applicable to you, there will be no salary or benefit impact as a result of this Temporary Assignment.
The next important document in time sequence is a March 5, 2001 Memorandum of Settlement of an earlier grievance. The current grievance, although not framed as a request for the enforcement of the earlier settlement, amounts, in part, to a claim that it has an effect on his ongoing entitlement to travel time and expenses. The terms of the March 5, 2001 settlement referred to as a basis for the current claim are as follows:
The employer agrees to reinstate the grievor to the position of Operational Manager – 16 (“OM-16”) effective March 12, 2001. The parties agree that the grievor’s home position shall remain the Toronto East Detention Centre however the employer shall temporarily assign the grievor to the Mimico Correctional Centre immediately upon reinstatement. Should the Mimico Correctional Centre “close” prior to the grievor being successful in a competition for a permanent position at another institution the grievor shall be again temporarily assigned to another institution at the employer’s complete and sole discretion. Subsequently, the grievor may continue to be perpetually temporarily assigned to other institutions at the employer’s complete and sole discretion unless the grievor is successful in a competition which necessitates the changing of the grievor’s home position.
The employer agrees that upon reinstatement the grievor will be treated like any other similarly situated employee and will not be the subject of any reprisals or differential treatment as a result of the subject matter in this agreement.
A further settlement, dated November 5, 2001, of an earlier grievance claiming travel time and mileage between Oshawa and Mimico contained the following terms which are necessary to refer to for this decision:
Whereas the grievor has filed a grievance with reference to him not being paid travel time and mileage for attending work at the Mimico Correctional Centre from his home in Oshawa.
The employer agrees…to:
- Compensate the Grievor on each and every occasion he reports for duty on his regularly scheduled shifts, 64 km. per shift, .. This arrangement will be in place from October 21, 2001 until March 4, 2002,at which time this payment arrangement will be reviewed by the employer;…
The grievor agrees that no travel time will be paid for him to attend his regularly scheduled shifts at his place of employment.
The employer takes the position that the provision about travel time continues to apply, as it was not expressed to end on March 4, 2002, as was the payment of mileage. For his part, the grievor does not accept that the above-noted provision means he can never get travel time for the rest of his career.
A third settlement, dated January 17, 2003, of a later grievance for travel expenses, contained the following relevant term:
The employer agrees to pay to the grievor travel expenses (mileage) from his home institution, Toronto East Detention Centre, to Mimico Correctional Centre for the period September 1, 2002 to January 10, 2003.
From approximately January to October 2003, the grievor was seconded to Millbrook Correctional Centre at the employer’s request and received travel expenses. On October 6, 2003, near the conclusion of that secondment, the grievor was once again advised that he would be temporarily assigned to the Mimico Correctional Centre. Once the grievor was back at Mimico, the employer declined to pay travel expenses, leading to this grievance.
The grievor also made reference to a document dated March 10, 2004 entitled Terms and Conditions of Temporary Assignment. By its terms, this document relates to the period October 20, 2003 to September 30, 2004 at Mimico Correctional Centre. The grievor declined to sign it, as he found some of its terms ambiguous. Nonetheless, it appears to be the terms and conditions in place for that period, and he relies on the following wording which appears in that document:
COMPENSATION AND BENEFITS: Employee will retain all existing benefits and salary entitlements and revisions awarded to his/her class during the period of his temporary assignment.
The grievor is of the view that this preserves the payment of travel expenses he was receiving while on secondment at Millbrook, since there is no contract to the contrary. It is his position that if the employer had wanted to cease paying travel expenses, they could have put in wording to make it clear that they intended to do so. By contrast, the employer sees this language as confirming that the grievor is entitled to the general terms and conditions of employment that everyone gets, which, in their submission the grievor has been afforded in this case.
The grievor’s position is essentially that he is not being treated as any other manager in a similar situation, as he should be according to the terms of the March 2001 settlement. He says that, in order to escape payment of the expenses he is claiming, the employer would have had to insert a sentence like the one in the April 22, 1997 letter set out above, saying there would be no salary or benefit impact as a result of the temporary assignment. Without that, in the grievor’s submission, he is an employee on temporary assignment entitled to travel expenses.
The grievor made reference to s. 10.17 of Regulation 977 under The Public Service Act which provides as follows:
Pay for Travel Time
10.17 (1) An employee described in subsection (2) is entitled to compensation under this section for his or her travel time in the circumstances described in subsection (3). O. Reg. 229/00, s. 1.
(2) Employees are entitled to compensation under this section if they are employed in a class of position set out in Schedule 3, 4 or 5 and the class falls within the Management Compensation Plan. O. Reg. 229/00, s. 1.
(3) Compensation is payable for an employee’s travel time,
(a) if he or she is travelling for an employment-related purpose authorized by his or her supervisor, but not travelling to reach his or her normal place of work or his or her headquarters; and
(b) if he or she is travelling by a means that has been authorized in writing by his or her supervisor. O. Reg. 229/00, s. 1.
(4) If the employee travels by car or by public transit, and if the employee travels to the destination directly, compensation is payable for the following periods of travel time (calculated to the nearest half-hour):
From the employee’s authorized time of departure from his or her normal place of work, headquarters or home, as the case may be, until the time he or she arrives at the destination.
From the employee’s authorized time of departure from the destination until the time he or she arrives at his or her normal place of work, headquarters or home, as the case may be. O. Reg. 229/00, s. 1.
(5) If the employee travels by a public carrier other than public transit, compensation is payable for the following periods of travel time (calculated to the nearest half-hour):
- From one hour before the scheduled time of departure by the carrier until one hour after the carrier arrives at the destination. O. Reg. 229/00, s. 1.
(6) Despite subsections (4) and (5), if the employee travels on a holiday listed in subsection 58 (1) or on a day that is not a regularly scheduled work day for the employee, compensation for a minimum of four hours is payable under this section for his or her travel time on that day. O. Reg. 229/00, s. 1.
(7) Despite subsection (6), if the employee’s means of travel includes sleeping accommodation for him or her, the employee is not entitled to compensation for his or her travel time between 11 p.m. and the time that he or she regularly begins work. O. Reg. 229/00, s. 1.
(8) The employee shall be compensated as follows for the travel time described in subsections (4) to (6):
He or she is entitled to be paid at his or her basic hourly rate for the travel time.
However, if the employee and his or her supervisor agree, the employee may take compensating leave equal to the amount of the travel time.
Compensating leave must be taken before the end of the fiscal year after the fiscal year in which the employee becomes entitled to it.
If the employee does not take all of the compensating leave within that period, the employee shall be paid a lump sum for the remaining travel time. O. Reg. 229/00, s. 1.
The key question to be answered in determining whether the above provision entitles the grievor to travel time is: where is the grievor’s normal place of work? The employer says that Mimico is the grievor’s normal place of work. In the grievor’s view, it is not correct to say that Mimico is his normal place of work when his home position is Toronto East Detention Centre, his assignment to Mimico is temporary, and he has also worked at Millbrook. In the grievor’s view, the employer has ordered him to work at Mimico, so it is not a voluntary assignment. The grievor did acknowledge in his testimony that he was aware that he probably would never go back to Toronto East Detention Centre.
The grievor gave the example of an employee named Tom Montgomery as someone receiving travel expenses as he claims he should be. Mr. Montgomery won a permanent position at Maplehurst, but continued to work at Mimico. The grievor indicated that the day Mr. Montgomery’s classification changed, he started getting expenses from Mimico to Maplehurst. The employer’s uncontested evidence was that the reason for the payment is that management had requested Mr. Montgomery to stay at Mimico until it closed; it was very difficult to attract staff and managers to a closing institution. Moreover, he only receives mileage from Maplehurst to Mimico, not the total from his home to Mimico and does not receive travel time or lunches.
The grievor referred to several provisions of the Travel, Meal and Hospitality Expenses Directive, in particular paragraph 9 which provides that one of the principles that are to guide exceptions to the rules is flexibility, i.e. management decisions are to respect the duty to accommodate, respond to a person’s needs and interests, and consider unforeseen circumstances.
The parties also referred to the following excerpts from the employer’s Pay on Assignment Operating Policy:
TEMPORARY ASSIGNMENT
- An employee on temporary assignment may go directly to another temporary assignment without going back to his or her home position. In such a case, pay treatment for the employee must be determined based on the class of the position of his or her last temporary assignment.
Temporary Assignment
Temporary assignment is a general term that refers to assignment of an employee to a position or assignment (for example, a special project or task force) other than his or her home position for a specific period of time. Examples of temporary assignments include acting assignments, acting underfill assignments and secondments.
The employer called evidence from two of the grievor’s former superintendents in support of its position that none of these documents entitles the grievor to what he seeks. Mr. Fred Williams, superintendent at Mimico at the time of his retirement in April 2005, testified that a temporary assignment is always for a specific period of time, and has an end date, which can be extended. He said that travel time was very seldom paid, but that expenses were often negotiated between the employer and an employee. There is not a set amount, and it is never automatic; it has to be negotiated. He said that where management had requested the temporary assignment, mileage was often paid, but travel time and meals were rarely authorized. Where the assignment is at the employee’s request, mileage is not generally paid either, but he acknowledged there could be variations in the arrangements made.
Mr. Williams was aware of the arrangements made concerning Mr. Melville and said the sense in which his assignment to Mimico was temporary was that he was on Toronto East’s complement, rather than Mimico’s. When asked if it was at management’s request, Mr. Williams stated it was mutually agreed. He stated flatly that Mr. Melville was not able to return to Toronto East. When Mr. Melville arrived at Mimico, no agreement concerning travel expenses accompanied him. When he first requested travelling expenses, Mr. Williams considered it and did an extensive investigation with Human Resources. Mr. Williams found that the grievor was not eligible, and conveyed that answer to Mr. Melville. Mr. Williams later became aware that a settlement had been reached which afforded Mr. Melville some travelling expenses.
Mr. Williams acknowledged there was provision for travel time under the Public Service Act, but he did not believe that Mr. Melville was entitled when travelling to his normal place of work, i.e. Mimico, which was not the same as his Headquarters, which was Toronto East.
Mr. Tony Valaitis, whose home position is Deputy Superintendent of Services at Toronto East Detention Centre, also testified. He said that agreements as to temporary assignments can be in the form of a letter containing the terms and conditions of the posting, or can be structured more formally. He said that what expenses will be paid is determined on a case-by-case basis. For instance, he himself is on a temporary assignment to Toronto West Detention Centre, but he is not paid mileage because it is closer to his residence than his home position. Generally, if the temporary assignment is at the employer’s request, and the temporary location is at a greater distance than to the home position, mileage is paid for the difference between the two workplaces. He said that travel time would only be paid in rare instances such as a temporary assignment to Ottawa in which case someone might get time to return home once a week. Meals are generally not paid either, but might be negotiated in a situation like the Ottawa example. Mr. Valaitis indicated that the agreements vary depending on many factors, including the strength of the negotiating position of the employee.
Mr. Valaitis dealt with two of the grievor’s grievances relating to travel time when he was at Mimico. He said the employer did not continue paying expenses after the periods agreed to in the settlements because his assignment was not requested by the employer but arose out of a grievance which had not raised an obligation on the employer to pay. He said there was no agreement to a fixed term of work at Mimico; the only thing that was fixed was the end date of the payment of expenses in the grievance settlements.
In cross-examination, Mr. Valaitis was asked if Mr. Melville went to Mimico at the employer’s direction or his own request, and he answered at the employer’s direction after discussion and agreement.
The grievor submits that the employer has failed to dispute or counter any of the statutes or directives submitted by him, and underlines that their case is based on two opinions of administrators, one who is retired. The grievor submitted that no explanation for the failure to pay travel expenses has been given other than “the region said no”, which prompts him to query why expenses were paid prior to this most recent grievance. The grievor also emphasised that Section 2.5 of the employer’s Staffing Operating Policy provides that all parties must agree in writing to the terms and conditions of a temporary assignment, and submitted that the Ministry did not attempt to negotiate such an agreement.
By contrast, the employer maintains that its evidence established that there always was some kind of agreement regarding the grievor’s temporary assignment. Starting with the agreement dated March 5, 2001, the parties stipulated that the grievor could be permanently assigned away from his home position, and did not provide for travel expenses. The later agreements either provided for expenses for a limited time, or did not provide travel expenses.
Further, it is the employer’s position that the grievor’s assignment to Mimico does not meet the policy definition of a temporary assignment because it was not for a temporary period of time. What makes an assignment temporary in the employer’s submission is having a home position you can go back to at the end of the temporary assignment. This is not the case for Mr. Melville. He is perpetually seconded to Mimico, and will not be going back to Toronto East. Moreover, counsel underlined that the evidence established that not all employees on temporary assignment received travel expenses in any event. The employer’s practice features a distinction between temporary assignments at the request of the employer, and those of the employee. In the unusual circumstances of this case, counsel argues that the grievor did not fall into a regular temporary assignment or a management requested temporary assignment where the employer needed a person to work at a specific location for a specific period of time. Rather, this is a case of an agreement signed by the grievor to work indefinitely at Mimico in exchange for reinstatement.
Comparing the example of Mr. Montgomery to Mr. Melville, counsel argued that the two were not similarly situated. The parties entered into an agreement to pay mileage to Mr. Montgomery between his new home position and the temporary assignment to Mimico as the assignment was at the employer’s request, consistent with the employer’s usual practice. Further, he is not receiving travel time and meals, which are very rarely agreed to by the employer. Counsel underlines that when the grievor was similarly situated, he was treated similarly, as demonstrated by the fact that the grievor was paid travel expenses while he was on secondment to Millbrook, when the employer had requested him to go there. Counsel contrasts this with the circumstances of his assignment to Mimico where it was not an employer request, but a negotiated agreement to resolve a grievance.
As to the provisions of section 10.17 of Regulation 977 under the Public Service Act, the employer’s position is that Toronto East Detention Centre is no longer the grievor’s normal place of work, in contrast to Mimico where he has been regularly attending work since 1999.
Furthermore, and more generally, the employer argues that the mere fact of being on temporary assignment does not entitle an employee to expenses, whether travel time, mileage or meals. Counsel submitted that it really just comes down to the circumstances of the particular assignment. In the employer’s view, the grievor has not demonstrated why he should qualify for these expenses which are only paid in very specific circumstances. Further, it is the employer’s position that there is no basis for the claims for car expenses or sick time.
In the alternative, the employer argues that even if the Board should decide that the grievor was somehow otherwise entitled to travel expenses, it should be very clear that the grievor is not entitled to travel time. Counsel refers to the settlement dated November 5, 2001, which had specific, time limited, provisions as to mileage, and the following provision, paragraph 5, in regards to travel time:
- The Grievor agrees that no travel time will be paid for him to attend his regularly scheduled shifts at his place of employment.
As for the settlement dated January 17, 2003, counsel urges the Board to take it for what it was: a further time limited extension.
In reply, the grievor argued that the combination of the provision in the 2001 settlement that his home position was Toronto East Detention Centre, and the documents stating his assignments to Mimico were temporary amount to the employer initiating these assignments, not a mutually agreed matter. As to the idea that he agreed to it when he signed the original settlement, he said the options were to sign or not work, and that the phrase “at the complete and sole discretion of the employer” make it clear that it was not dependent on his agreement. Further, in response to employer counsel’s argument that this was not a normal temporary assignment, the grievor queries why they would keep calling it a temporary assignment in the above documents if that was not what it was.
As to the idea that the settlement dated November 5, 2001 constitutes an agreement by the grievor that he would not receive payment for travel time, the grievor argues that that agreement was a time limited one until March 2002, after which a new agreement should have been drawn up. Further, he says that the fact that it was stated explicitly is an indication that he was giving up some entitlement that he otherwise would have enjoyed. As well, he relies on the provision of the staff operating policy to the effect that all parties must agree in writing to the terms of temporary assignments. To the idea that such an agreement is to be found in the original 2001 settlement, the grievor argues that the evidence of Mr. Valaitis was that such agreements had to be a letter. In any event, in the grievor ‘s view, the 2001 settlement did not negotiate all the terms as required in the Staff Operating policy. Further, the grievor notes that he had to grieve to get any kind of agreement. The procedure was not followed to begin with.
On the subject of Mr. Montgomery, the grievor queried why his situation had not been clarified in further detail beyond that he was receiving mileage. Mr. Tome, who appeared with the grievor, added that Mr. Montgomery’s home position had never changed until he won a position at Maplehurst. Thereafter, his place of employment remained at Mimico even though his home position had changed. He noted that Mr. Melville’s situation is the reverse; his home position never changed, but his assignment did.
The grievor has suggested several different grounds to substantiate his claim to travel and other expenses, which will be discussed in turn.
Starting with the provisions of s.10.17 of Regulation 977, set out above, they make it very clear that no travel time will be available if the person is travelling to his normal place of work or Headquarters. There may be cases where there is real uncertainty about where a grievor’s normal place of work is, but the facts are quite clear in this case that in the time period claimed, since October 20, 2003, the grievor’s normal place of work has been Mimico. The evidence is that he was on a short secondment to Millbrook earlier in 2003, but other than that, he has been working steadily at Mimico since 1999. Any doubt there might have been in 1999 when he first started working there has been effectively removed by his continued assignments to Mimico. By the terms of the original 2001 settlement, his headquarters remains Toronto East Detention Centre, but that does not mean that it continues to be his normal place of work. And the evidence made it clear that it is unlikely that Toronto East will ever be the grievor’s normal place of work again. The wording of section 10.17 allows for the possibility that one’s home position or headquarters and normal place of work might be two different places, and that is the case on the facts of the grievor’s situation. It should be noted as well that there is nothing in section 10.17 about “temporary” assignment as a trigger for the entitlement in that section.
Another basis for the grievor’s claim is the 2004 agreement which indicated he would retain the compensation and benefits awarded to his class. This clause, set out above, is not sufficient to continue payment for mileage after the secondment to Millbrook to which that payment was attached had ended. It is worded in a general way, to underline that the grievor was entitled to receive the increases other members of his class received, but does not go as far as continuing what he had been granted for the specific temporary period he was at Millbrook. Similarly, the excerpt from the Pay on Assignment policy which provides that pay treatment for an employee going from one temporary assignment to another must be determined based on the class of the position of his or her last temporary assignment is too general to rely on to continue the travel expenses specifically agreed to for Millbrook. The employer’s uncontradicted evidence establishes that the general pay treatment for the OM16 class was not to pay expenses for all temporary assignments, but only for employer initiated ones. Other arrangements also existed, but were negotiated on a case-by-case basis. Specifically, there was no indication that it was part of the pay treatment of the OM16 class to pay travel expenses not specifically agreed to for a perpetual temporary assignment.
If the grievor were able to show that it was a condition of employment of the OM 16 class that they would be paid travelling expenses, that particular clause would be an adequate basis for a part of his claim. However, and unfortunately for Mr. Melville’s grievance, there was no evidence that there was a general right to be paid mileage or other travel expenses in circumstances like those he found himself in at Mimico. None of the documents referred to by either party give a general right to those in the OM 16 class to travel expenses when not working in their home positions. They do provide a policy framework that makes it possible for the employer to authorize such expenses, but the evidence simply did not support the idea that ongoing travel expenses were ever authorized for the grievor. He settled grievances in a manner which afforded him travel expenses for specific periods of time, but these provisions did not continue into the period claimed in this grievance – October 20, 2003 and forward.
The practice of paying expenses when the employer requests a temporary assignment is not of assistance to the grievor either. Leaving aside for a moment the question of whether such a practice could be considered an entitlement, the fact that the assignment to Mimico happened as a result of a settlement of a grievance removes the grievor’s situation from being similarly situated to that of an employee requested by the employer to take a particular assignment. However one wants to describe the situation where a person accepts a particular assignment in order to facilitate reinstatement to employment, it does not amount to the type of employer request described in evidence as normally attracting payment of mileage. Nor does the fact that the grievor felt he had little choice but to agree to the assignment to Mimico assist the grievor’s case. However unpalatable the terms may have been, or may have become, to Mr. Melville, the settlement was mutually agreed, not a unilateral request. Further, the confusion created by referring to the perpetual reassignment away from Toronto East as “temporary” in a number of the relevant documents is not a reason to grant the grievance. The evidence was convincing that the mere fact of being temporary, actually or notionally, is an insufficient basis for the grievor’s claim. As explained above, not every temporary assignment attracts even mileage, and payment of travel time and meals is rare.
As to the claims for car expenses and reinstatement of sick leave, the grievor has not established any term or condition of his employment that would entitle him to receive them. Neither has he demonstrated any breach of a right to travel expenses which could generate a claim to these as damages flowing from such a breach.
In sum, for the reasons set out above, Mr. Melville’s grievance is dismissed.
Dated at Toronto this 1st day of February 2006.