P-2005-1114
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Jim Antle
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
James D. Antle
FOR THE EMPLOYER
Simon Heath Counsel Ministry of Government Services
HEARING
July 13, 2006.
Decision
This decision deals with the grievor’s claim to mileage expenses for the period November 19, 2001 to March 30, 2005. Mr. Antle asserts that during that period he was temporarily assigned to the Brockville Jail, while awaiting a reporting date to the St. Lawrence Valley Correctional and Treatment Centre (St. Lawrence). The employer resists this claim on the basis that the Brockville Jail was the grievor’s normal place of work, and there was no agreement to pay him travel expenses as there was with other managers coming from other institutions who were temporarily assigned there.
The employer also raised preliminary objections on the basis of timeliness and lack of a prima facie case. Employer counsel proposed we not bifurcate the proceedings, an entirely sensible suggestion in the circumstances where the evidence and argument were not anticipated to extend beyond a day’s hearing, conserving the parties’ as well as the Board’s resources.
The undisputed factual background to this dispute is that the grievor started working as an Operational Manager, in the OM 16 classification, at Brockville Jail on February 15, 1999, prior to which he had been an acting Operational Manager at Rideau Correctional and Treatment Centre (Rideau). In early 2002, he was successful in a competition and was confirmed as an OM-16 at St. Lawrence, an institution yet to be built, with an effective date of November 21, 2001. He continued to work at the Brockville Jail. There was no discussion with him as to travel expenses at that time, something the grievor did not question, as there was no change in his actual work location. Nonetheless, his home position did change as an administrative matter at that time, so that he was considered temporarily assigned to the Brockville Jail from November 21, 2001 onwards. With the exception of secondments, the grievor worked at Brockville Jail from 1999 to 2005.
In early 2004, an announcement was made that Phase II of St. Lawrence was to be cancelled, and instead the existing St. Lawrence was to be merged with Brockville Jail to form one facility for administrative purposes. The group of Operational Managers at the two locations were invited to compete for a reduced number of jobs at the newly merged institution. This pool included certain Operational Managers temporarily assigned to St. Lawrence, the Ottawa Carleton Detention Centre, the Quinte Detention Center as well as the Brockville Jail. Thirteen of them, including the grievor, won positions in the amalgamated facility. When some of them reported for work at the Brockville Jail, the grievor became aware that many of them were receiving travel expenses. He indicated that the only ones not receiving some travel expenses were those who had been at St. Lawrence or Brockville Jail prior to the competition.
The grievor argues that the employer could have opted to not require the managers already at St. Lawrence or Brockville Jail to compete for those jobs, but instead it chose to have everyone compete, and once it put everyone in the pool, everyone should be treated the same for travel expenses while temporarily assigned. It is the idea that all the Operational Managers awaiting transfer to the newly merged St. Lawrence facility were treated as temporarily assigned, but not all afforded travel expenses, which is at the root of Mr. Antle’s grievance.
For purposes of his claim for travel expenses, the grievor sees himself as similarly situated to two other managers, Donald Crowder and Jim MacPherson, who received travel expenses while temporarily assigned to the Brockville Jail, while awaiting the transfer to the St. Lawrence. The grievor asserts in the particulars he filed that they received travel expenses throughout the transition process, up to May 30, 2006.
The employer draws attention to other facts, which they assert put these other two managers into a different category in regards to travel expenses. Both Messrs. Crowder and MacPherson had been at Rideau which was decommissioned effective January 15, 2004. Mr. Crowder was, according to the January 8, 2004 letter to him in evidence, Acting Deputy Superintendent at Rideau and was to retain his AIM-19 classification while temporarily assigned to the position of Operational Manager at Brockville. He remained at Rideau a number of weeks to oversee certain decommissioning activities and was then temporarily assigned to the Brockville Jail effective February 9, 2004. The letter informing him of this makes specific reference to a meeting that would take place in order to discuss terms and conditions of the assignment, including any temporary expenses. Mr. MacPherson went from Rideau to do a stint at Quinte Detention Centre and then came to Brockville.
The temporary assignment of Messrs. MacPherson and Crowder was at the employer’s request, a situation where travel expenses are often paid, and were specifically negotiated with them. As well, they lived in Smith Falls, requiring a commute considerably longer than that required for the grievor, who lived in Brockville during the time period he claims travel expenses to the Brockville Jail. In the employer’s view, the difference in how the three men came to be temporarily assigned to Brockville Jail justifies the difference in payment of travel expenses while there.
The employer’s position is that there is no automatic entitlement to pay for travel for reporting to work, even on temporary assignments; payment for time and expenses are negotiated as to distance, timing, and various other factors, such as payment for kilometres driven and meals. There is an employer policy entitled the “Staffing Operating Policy” which refers to terms of temporary assignments, for both bargaining unit and non-bargaining unit employees, at pp. 10 and 11 as follows:
2.5 Temporary Assignments
All parties must agree in writing to the terms and conditions of the temporary assignment. The agreement should contain:
$ a statement of the purpose of the assignment and description of duties
$ specific salary and benefit arrangements,
$ the length of the assignment with a provision for possible extension,
$ confirmation that the employee retains status as a civil servant,
$ confirmation that the employee’s rights and entitlements flow from the last permanent, classified position he/she held before the temporary assignment,
$ confirmation of which organization (releasing or hiring) has primary responsibility for the employee,
$ provision for the completion of a performance development plan (including evaluation) if the length of assignment is at least six months,
$ identification of any placement entitlement at the completion of the assignment,
$ provision that the employee retains entitlement to apply for employment opportunities within the OPS,
$ provision for early termination of the assignment.
As well s. 10.17 of Regulation 977 under The Public Service Act 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.
In regards to the key element in determining whether the above portion of the regulation entitles the grievor to travel time, i.e. the location of the grievor’s normal place of work, the employer submits that it is clear that the grievor’s normal place of work was the Brockville Jail from November 21, 2001 onwards. Employer counsel underlines that the Staffing Operating Policy provides no entitlement to travel expenses, just a framework within which they may be negotiated.
On behalf of the employer, Mr. Heath emphasized that from a factual point of view, Messrs. Crowder and MacPherson were not in the same position. Further, from a legal point of view, the fact that they were all considered temporary does not guarantee travel expenses, which are specific to each individual’s circumstances, on a negotiated basis. The policy does not provide for mandatory travel expenses. Therefore, there is no contractual right to travel expenses in the employer’s submission. As to the regulation, since Brockville was the grievor’s normal place of work, there is no entitlement flowing from that source either. In support of his argument, counsel referred to previous decisions of the PSGB, including Melville and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB # 2004-0089 (O’Neil), Woodward et al. and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB # 2005-1853 (O’Neil) and Nancy Marshall and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB # 2004-2738 (O’Neil).
The grievor’s main contention is one of even-handedness. Since others who secured positions at St. Lawrence, but were temporarily assigned elsewhere while awaiting a reporting date, received travel expenses, the grievor argues that it is a matter of fairness that he should receive them as well.
For the Board to be in a position to find a grievance successful, and to award a remedy, there must be a breach of a term or condition of employment, something that has become part of the grievor’s contract of employment. This is something more than a belief that something is unfair, no matter how deeply held or widely shared. For the grievor, the contract of employment is individual, between the government as employer and the grievor as a managerial employee. Facts of how others are treated may be relevant if they show a practice or policy that is sufficiently established and general to be considered part of the grievor’s contract of employment as well, or if they show illegal differential treatment of some kind, such as discrimination on a prohibited ground. Otherwise, the fact that another manager is treated differently may turn out to be evidence only of the fact that the terms and conditions of the other manager or managers’ employment were somewhat different. In the eyes of the law, managers’ employment contracts are not collective, as is the case for employees in bargaining units. The fact that there are policies, wage classifications and regulations which may apply to all managers, or a large group of them, may give the impression that the situation is more collective than it actually is as a legal matter.
Turning then to the individual situation of the grievor, the question becomes: is there a term or condition of his employment that entitles him to the travel expenses he claims? The potential sources for entitlement referred to at the hearing are three:
the fact that other managers temporarily assigned at Brockville received travel expenses
the staffing policy
the provisions of s. 10.17 of Regulation 977 under The Public Service Act
Starting with the first of these, and leaving aside for a moment whether the evidence of the payment of travel expenses to other Operational Managers such as Messrs. Crowder and MacPherson establishes a policy that applies to Mr. Antle, the evidence was persuasive that Mr. Antle was not in the same situation as these others, except for the fact that they were all considered to be temporarily assigned to the Brockville Jail. As the grievor acknowledges, nothing changed about where he reported to work when his placement at the Brockville Jail changed for administrative purposes from permanent to temporary. By contrast, Messrs. MacPherson and Crowder changed their place of work from Rideau to Brockville (by way of Quinte in the case of Mr. MacPherson), involving both a change in work location and a substantial commute. These facts do not suggest any improper differentiation, or unfairness in the application of policy, in the fact that Mr. Antle did not receive the same consideration for travel expenses, as he did not experience a similar change in his work location or travel situation.
The next necessary question is whether there was a policy, regulation or other term or condition of employment that indicated that all temporarily assigned managers should receive travel expenses. The evidence before me does not demonstrate such a policy. The Staffing Operating Policy provides only that terms and conditions of a temporary assignment must be in writing and should contain certain items. Significantly, travel expenses are not one of the items on that list. As noted in the Melville decision, cited above, the evidence in that case was that travel expenses are subject to negotiation with the individual manager, and are not triggered by every temporary assignment. There are a variety of factors involved, which particularly often result in the payment of travel expenses when the transfer is from one institution to another at the employer’s request. There was no evidence to the contrary before me during the hearing of Mr. Antle’s grievance. The evidence of the situation with Messrs. Crowder and MacPherson, rather than evidencing a general right to travel expenses during any temporary assignment, supports a finding that the employer negotiated and agreed individually with them to pay, given the specific circumstances of their temporary assignments in which they were asked by the employer to leave one institution and start working at another.
As for Mr. Antle, the grievor, no negotiations took place, and neither party raised the issue about travel expenses until the grievor learned that other temporarily assigned managers were in receipt of travel expenses. It is true that once he had secured a permanent position at St. Lawrence, with a deferred reporting date, Mr. Antle’s assignments to Brockville were documented as temporary assignments, but there is no accompanying agreement to pay travel expenses. The personnel documentation shows that the assignment to Brockville after he originally secured the permanent position at St. Lawrence was recorded as a temporary backfill assignment, with an effective date of November 21, 2001 and an end date of January 7, 2004. By a document dated September 15, 2004 it was later recorded as having been extended to December 31, 2005 with an effective date of January 1, 2005. Although the grievor’s signature does not appear on either of those documents, he did not dispute the terms set out therein. There is no other writing, promise, or policy in evidence that generates an entitlement to travel expenses in the grievor’s circumstances.
As for section 10.17 of Regulation 977, the grievor did not base his claim on it, but I agree with counsel’s submission that it does not apply, as Brockville Jail was the grievor’s normal place of work throughout the period in question.
In the result, the evidence does not establish that there was a term or condition of the grievor’s employment that was breached when he did not receive payment for travel time or expenses while temporarily assigned to the Brockville Jail. In the result, no remedy is in order.
Counsel for the employer also made motions based on delay and lack of a prima facie case. Given that the merits were being dealt with on the same day, it was unnecessary to hear argument on the prima facie motion, and given the view taken of the merits above, it is not necessary to deal with the argument made concerning the employer’s timeliness objection.
In the result, for the reasons set out above, the grievance is dismissed.
Dated at Toronto this 8th day of August, 2006