P-2005-1151
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Karla Marshall
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
Melynda Layton Barrister & Solicitor
FOR THE EMPLOYER
Simon Heath Counsel Ministry of Government Services
HEARING
January 30 and May 4, 2007.
Decision
This decision deals with Ms. Karla Marshall’s claim for payment for travel time and expenses from November 1, 2001 to December 31, 2004. A preliminary objection to its arbitrability was dismissed in a previous decision dated August 8, 2006.
The facts
The following chronology forms the factual background to the grievor’s claim:
2000
Ms. Marshall, then a bargaining unit correctional officer at Ottawa Carleton Detention Centre (OCDC), where she had worked since 1986, was looking for advancement with the Ministry. On the advice of her supervisors that it would be helpful for the development of her managerial skills, Ms. Marshall arranged for and requested a job-swap so that she could gain experience in a correctional centre setting.
2001
January 2, 2001 – the grievor started working at Rideau Correctional and Treatment Centre (Rideau) as an Acting Operational Manager. Prior to reporting at Rideau she received a letter from her superintendent indicating that she would be responsible for “any expenses incurred as a result of this assignment”, which was said to be for a period of up to six months. The grievor was asked, and agreed, to remain at Rideau past the six months period contemplated at the outset of the assignment. There was no discussion of entitlement to travel expenses at that point; Ms. Marshal testified she did not bring up the subject because she did not know she was entitled to them.
Throughout the time Ms. Marshall continued to work at Rideau, it was on the list of facilities to be decommissioned and the employer needed managers there.
November 19, 2001 was the effective date of the grievor’s change from status as an acting Operational Manager to a permanent one, as she had secured a position as an Operational Manager with the St. Lawrence Valley Correction and Treatment Centre (St. Lawrence) Phase 1. As the facility was not yet built, her reporting date was indefinitely deferred. In the meantime, she was temporarily assigned to Rideau, with the result that she stayed working where she had been since January of the same year. Again, there was no discussion of travel expenses.
2002
In January 2002, the grievor received word, by letter dated December 31, 2001, that she had secured a permanent position at St. Lawrence, a new home position; the effective date was backdated to November 19, 2001. She was also advised in that letter that she could apply for relocation expenses, but she did not pursue that option.
For part of the OPSEU strike the grievor worked at OCDC, returning to Rideau at the strike’s conclusion. At the direction of the Acting Financial Manager at OCDC, she applied for travel expenses for the duration of the strike and received mileage expenses only.
2003
April 29, 2003 - when the first phase of the new St. Lawrence facility had been completed, the grievor was assigned to report to the Secure Treatment Centre there as part of the start-up team, to establish policies and be trained to train the correctional staff when they arrived at a later date. She received a letter dated April 23, 2003, providing that for the first four weeks, she was considered on a temporary training assignment during which she received payment for mileage.
May 28, 2003 - The grievor’s formal reporting date at St. Lawrence. The personnel documentation of the grievor’s move from Rideau to St. Lawrence effective May 28, 2003 indicates it as a return to Home Position.
2004
November 2004 - Operational Managers were asked to go to OCDC which was short of managerial staff. It was made clear that if there were no volunteers, people would be ordered to go, and that travel expenses would be paid. The grievor agreed to go if she could work with youth. She was considered on temporary assignment there and had a meeting about travel expenses with the superintendent and a representative of Human Resources. She received mileage, between her home and Ottawa, banked travel time (which she wrote into the document herself) and paid lunch between January 4, 2005 when she reported to OCDC and June 3, 2005.
2005
January 4, 2005 – the grievor reported to OCDC on temporary assignment. The documentation of the grievor’s transfer to Ottawa indicated that she was to return to her home position as Operational Manager at St. Lawrence at the end of the temporary assignment, but that did not actually take place. By early January 2005, it had been announced that St. Lawrence was to be merged with the Brockville Jail and Phase 2 was not going ahead. The grievor, as one of 26 operational managers from St. Lawrence Phase One, those already hired for the cancelled Phase Two, as well as those from the Brockville Jail, were required to compete for half that number of Operational Manager jobs in the new integrated facility.
May 26, 2005 – The grievor was informed that she was not successful in getting one of the 13 remaining positions at the merged St. Lawrence/Brockville Jail facility. She was declared surplus and offered a position at OCDC.
Once she was clear that she would not be retained at St. Lawrence, the grievor came to the conclusion her placement at St. Lawrence had not been permanent and that she should have been entitled to travel allowance, not just for the training period, but for the time up to her return to OCDC. The grievor submitted her request for payment of travel expenses, having learned that other Operational Managers in circumstances she considered similar to hers had been paid travel expenses while temporarily assigned.
June 4, 2005 - As the claim for travel expenses had not been approved, Ms. Marshall grieved, writing to the Deputy Minister of Community Safety and Correctional Services.
July 4, 2005 - When no remedy was forthcoming, she forwarded the matter to the Board for resolution.
September 16, 2005 - the grievor was appointed to a permanent position with OCDC. A letter dated July 5, 2005, confirming the grievor’s acceptance of a direct assignment to OCDC, made it clear there would be no travel or relocation entitlements as a result of the permanent assignment. The grievor said that under the redeployment provisions, she had no choice.
Three other Operational Managers gave evidence about the situations in which they received travel expenses. Firstly, Christopher Malcomnson testified that he started out as a Correctional Officer at Rideau, where he worked between 2001 and 2004. He competed for the same positions as the grievor at St. Lawrence, and won a permanent Operational Manager position at St. Lawrence in January 2002. However, he was not selected to be in the group to start up St. Lawrence, Phase I, as the grievor was, and stayed at Rideau with no travel expenses until it was decommissioned in late 2003. Mr. Empey, now Acting Superintendent of St. Lawrence Valley Treatment Centre and Brockville Jail, testified that he did not receive travel expenses because Rideau was his normal place of work. Between the end of his time at Rideau, and reporting to St. Lawrence in March 2004, he was assigned to staff training at Merrickville, and then worked at Quinte Detention Centre in Napanee at the employer’s request for about a month and a half. He received travel expenses and mileage for the time at Merrickville and Quinte, as it was a temporary assignment at the request of the employer, according to Mr. Empey.
Prior to reporting at Quinte, Mr. Malcomnson was told to meet with the Assistant Regional Director, Gary Hogarth. At a meeting with him, Mr. Malcomnson asked that his transportation time, about two hours each way, be incorporated into his work day. Mr. Hogarth agreed, and instead of claiming mileage, he was provided with a rental car. Mr. Malcomnson was not provided with any policies on travel expenses, but arrived at an understanding of what he would get from his conversations with Mr. Hogarth.
While at Quinte, Mr. Malcomnson received an e-mail from Superintendent Marg Welch, which was circulated to managers waiting to take up their posts at St. Lawrence, informing him of a temporary need at St. Lawrence for a replacement for another manager, Tim Asselin, who was off on lengthy sick leave. Mr. Malcomnson submitted his name for this assignment and reported to St. Lawrence on March 1, 2004. He worked as a regular Operational Manager, running the shift, rather than as a Wellness Officer, which was Mr. Asselin’s job. Mr. Empey testified that Mr. Malcomnson took up the sick leave backfill at the employer’s request, and was considered on temporary assignment at St. Lawrence during the sick leave replacement, as he was slated to go back to Quinte. His travel expense arrangement for travel time and mileage from Napanee was continued, adjusted so that he no longer received a rental car. The terms of that temporary assignment were set out in a written document signed by Mr. Malcomnson, Mr. Empey, then Deputy Superintendent, Administration at St. Lawrence, as well as by the superintendent at Quinte, and Mr. Hogarth, the Deputy Regional Director, Adult Institutional Services. Mr. Malcomnson remained at St. Lawrence until December 2004, when he left to take up a position as an inspector with the Ministry of Labour, leaving before he ever took up his permanent post at St. Lawrence as Phase II had been cancelled. In the meantime, Mr. Asselin had returned from sick leave, but there was an unexpected retirement, and Mr. Malcomnson was still required there. Mr. Empey described this as continuing to work there at the employer’s request, although there was no paperwork for the extension.
James MacPherson testified that he started as an Operational Manager at Rideau in November 2001. Before Rideau’s closure in late 2003, he won a competition for a position at St. Lawrence, after which his home position was considered at St. Lawrence albeit with a deferred reporting date. After Rideau closed, he was temporarily assigned to the Quinte Detention Centre in Napanee where he remained for about 13 months. Effective March 7, 2005, his temporary assignment was transferred to Brockville Jail on the same terms and conditions, as reflected in a confirming letter. Prior to being assigned to Quinte, Michael Stephenson met with all the Operational Managers from Rideau about their options upon its closure. They were asked to list preferences, including other Ministries, and later each of them met with Mr. Hogarth to discuss their conditions of their temporary assignment. He was offered mileage and one meal during shift, as well as travel time to be included in his shift. As well, he asked for a $10 card for a cell phone for emergencies such as poor road conditions. He did not remember being told anything specifically about his rights on temporary assignment, nor did he receive any policy on the subject and said it was very informal. He did not consider the conversation a negotiation, more like “getting the standard entitlement everyone was putting in for.” Mr. MacPherson never took up his permanent position at St. Lawrence, but was requested to go to Ottawa instead, some time after her learned that Phase II was not proceeding, and that Brockville and St. Lawrence were merging. He believed he went to OCDC around September, 2005.
Daniel Lefebvre, who became an Operational Manager in about 1994, worked at the Cornwall Jail until it closed in November 2002. He was asked where he wanted to go when Cornwall closed, and he said he was interested in St. Lawrence. His superintendent asked him if he would go to Ottawa on temporary assignment, and he agreed. At the time he was told he would receive gas and mileage while at OCDC until St. Lawrence was ready. He was also paid for his travel time. A letter to him from Michael Stephenson, Eastern Regional Director indicated that he had opted to exercise his rights to a position at the St. Lawrence Valley facility in Brockville under the redeployment procedure, and that until a reporting date to St. Lawrence was confirmed he was temporarily assigned to OCDC. He was told by Mr. Stephenson that because he was temporarily assigned, they had to pay him time and mileage.
Mr. Empey, Acting Superintendent of the St. Lawrence Valley Treatment Centre and Brockville Jail, was at Rideau for 25 years, and moved to St. Lawrence in February 2003. He was aware that Ms. Marshall had asked to come to Rideau as an acting manager, and that the letter written by her superintendent spelled out that no expenses were to be paid. He said that if a person asks to go somewhere, they are not entitled to travel expenses. Further, he indicated that where a developmental assignment is concerned, the Ministry facilitates the assignment, but will not incur the additional cost of travel expenses. He was unaware of any written policy concerning travel expenses for Operational Managers. As to the extension of the grievor’s assignment to Rideau beyond the anticipated six months, Mr. Empey said he was not aware of any specific policy on the subject of extensions, but that the practice was that all terms and conditions would remain the same, which meant to him that the grievor would continue to be responsible for her own expenses. In his experience, temporary assignments are usually extended without documentation if both parties are happy, and if there had been a material change in the grievor’s situation there would have been further correspondence.
In Mr. Empey’s view, Rideau was the grievors’ normal place of employment for the time she was there, and then St. Lawrence after she took up her position there. He considers the normal place of work to be where you are scheduled to work. Mr. Empey did not consider the situations of Messrs. Malcomnson, MacPherson or Lefebvre to be comparable to Ms. Marshall’s, as they did not work in the same places under the same circumstances and the employer had negotiated travel expenses in those cases and not in the grievor’s. On cross-examination, Mr. Empey agreed there was an obligation to be open, honest and to demonstrate integrity. However, he emphasized that negotiating fairly and with integrity about travel expenses did not mean everyone received the same thing. He said that what they were entitled to depended on the circumstances, giving the example that a manager who lived a block down the street from the institution probably would not have gotten travel expenses. Further, when dealing with those displaced after the closure of Rideau, like Messrs. Malcomnson and MacPherson, there were certain transitional guidelines on the closure of Rideau which were used.
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.
The Parties’ Submissions
The grievor claims entitlement to travel allowance (consisting of mileage, travel time and meals) from November, 2001 when she moved from being an acting Operational Manager to being confirmed in a permanent position at St. Lawrence, but temporarily assigned to Rideau. The grievor’s claim was based on three general lines of argument:
-Entitlement under Regulation 977
Counsel for the grievor submitted that travel expenses were payable under the regulation as of right once it is established that the employee is not travelling to his or her normal place of business for an authorized employment related purpose. Counsel referred to the definition of “temporary assignment” in the Employer’s Pay on Assignment Operating Policy, which reads as follows at pg. 17:
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 Staffing Operating Policy
The Staffing Operating Policy, excerpted above, sets out what is to be addressed on the occasion of a temporary assignment. Counsel for the grievor submitted that the grievor was treated inequitably contrary to the Staffing Operating Policy. Counsel referred to the employer’s position that there is a practice of discussing travel expenses with the employee, in the sense of negotiating them and argued that the evidence showed that it was all set out for Messrs. MacPherson and Lefebvre. In the case of Mr. Malcomnson where there may have been more of a discussion, but none of the exchanges amounted to a true negotiation, in counsel’s view. Counsel emphasized Mr. Empey’s evidence that similarly situated people would all have received the same entitlements, travel time, mileage and meals and his agreement that the employer was bound by the Standard Operating Procedure to be even-handed, fair and to act with integrity.
Referring to the fact that Mr. Empey’s evidence did not clear up when the grievor’s developmental assignment ended at Rideau, as he was not involved in that transition, counsel for the grievor submitted that the employer could have called other witnesses, such as Ms. Tompkinson, the employer representative with whom the grievor was dealing at Rideau. Counsel underlined that the employer’s personnel documentation of the grievor’s continuing assignment to Rideau supports the position that the grievor stayed on at the employer’s request, as they indicate “backfill” as the nature of the temporary assignment at Rideau after she won the permanent position at St. Lawrence.
As to Mr. Empey’s evidence as to the practice, counsel notes that it was to the effect that travel time, meals and mileage were paid where a temporary assignment was at the request of the employer, with the caveat that travel expenses would not be paid when it was a developmental assignment. Counsel submitted on behalf of the grievor that her situation satisfied that test, as effective July 1, 2001, a representative of the employer requested her to stay at Rideau. It is the grievor’s position that, based on that request and the fact that the six-month period agreed to for the developmental assignment was over, she should be paid travel time, meals and mileage to Rideau until such time as she started at St. Lawrence. The grievor’s position is that the terms of the letter in place when she moved as an acting manager to Rideau only waived travel expenses for the six months of the original assignment.
As an alternative date for the commencement of her entitlement, grievor’s counsel notes that as of November 19, 2001, the effective date of her confirmation in a permanent OM16 position, the grievor was considered on temporary backfill at Rideau. It is submitted that since this was a temporary assignment at the request of the employer, she should have been paid mileage, meals and travel time after that date until she moved to St. Lawrence.
The Williams decision -
As for the time at St. Lawrence, the argument on behalf of the grievor is that she should never have been successful in obtaining the permanent position at St. Lawrence as the Board has found that only confirmed OM-16’s should have been included in the competition. Referring to the Board’s decision in Williams et. al. and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB #P/0008/01 et al. (January 14, 2002, Leighton), counsel notes the grievor was one of those non-OM 16’s at the time she competed who should never have been considered, and submits that her case thus forms part of the error. Counsel further referred to Sawyer et al. and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #2001-0013 (August 3, 2006, O’Neil). Mr. Sawyer, the grievor in that case, was an Operational Manager whose grievance was one of a group settled as a result of the Williams decision, as they were in a position similar to the grievors in Williams. The Sawyer decision dealt with Mr. Sawyer’s outstanding claim for travel expenses in addition to the direct assignment to the position of his choice which he had received. Ms. Marshall’s counsel underlines the principle set out in the Board’s decision in Sawyer, to the effect that a remedy should put him in the position he would have been if non-OM 16’s had not been included in the disputed posting. Applying this to Ms. Marshall’s case, counsel submits that the grievor would never have incurred the expenses involved in commuting to St. Lawrence on a daily basis, if the competition had been handled correctly. The Board is invited to find that to put her back in the position she would have been in if the employer had not run a flawed competition, she should be reimbursed the travel time and expenses for the commuting to St. Lawrence that she should not have been doing, and would not have been doing but for the breach found in Williams. If the breach had not occurred, she would still have been at Rideau, or when it was decommissioned, her home position would still have been in the bargaining unit at OCDC.
The employer’s position is that there is no policy, regulation or term or condition of employment that provides that all temporary assignments will attract travel expenses. Further under section 10.17(3) of Regulation 977, there is no entitlement if a person is going to their normal place of work, and nothing turns on whether the grievor’s status as permanent, temporary or acting, in the employer’s submission. The Board is invited to find that between 2000 and 2003, the grievor’s normal place of employment was Rideau, and thus is not entitled to travelling expenses under the regulation. Similarly, when she reported to St. Lawrence, that became her normal place of employment, and she is not entitled while there either. In support of its position, the employer relies on Melville and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB # 2004-0089 (O’Neil) and Antle and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #2001-0013 (August 8, 2006, O’Neil).
Further, it is the employer’s position that none of the people to whom the grievor compares herself were in the same situation to the grievor, and their circumstances do not establish that the grievor was treated in a discriminatory manner. Employer counsel submitted that since there is no policy dealing with the grievor’s situation, and temporary assignments are not dealt with in Regulation 977, the entire matter turns on whether there was a bargain between the parties. The fact that there were different contracts for different managers in different circumstances as they moved from one institution to another does not create a breach of the grievor’s terms and conditions of employment in the employer’s view. The Board is invited to find that the terms of the grievor’s temporary assignment to Rideau continued unless the parties agreed to change them. As there is no evidence that anyone approached anyone else about changing those terms, which included that the grievor would pay the costs of travelling to Rideau, and under which the grievor continued to work, the employer submits there is no basis for the grievance to succeed.
Referring to the evidence of the three other managers, employer counsel submits that the common theme was that they were not shown a policy, but discussed things with Mr. Hogarth. Counsel submits that the evidence supports a finding that if the employer asks you to go from one institution to another, usually they will pay travel expenses, but that if the move is at the employee’s request, generally they will not, and that the grievor was treated in accordance with that practice. When she was chosen to be part of the start-up team at St. Lawrence, the grievor was first paid travel expenses for four weeks of training, which the employer characterizes as a gratuitous payment. After that, her normal place of employment was St. Lawrence under the regulation until she took up her permanent position at OCDC, which then became her normal place of employment. For the interval where the employer requested her to go to Ottawa as a temporary assignment, she was paid travel expenses. The fact that those expenses ceased when she became permanent confirms the practice as described by the employer in counsel’s submission.
As to the Williams decision, employer counsel emphasizes that the Board did not order the acting Operational Managers who had been improperly allowed to compete to be removed from their positions. The remedy granted only applies to the grievors in that case, who were unsuccessful in the competition in which Ms. Marshall was successful. The decision does not affect the grievor and creates no entitlement for her.
In reply argument, counsel for the grievor submitted in reference to the Antle decision that where the parties and the evidence diverge is about the practice. It is the grievor’s position that the evidence shows that the practice is that if a temporary assignment is requested by the employer, the employee is entitled to travel expenses. Counsel for the grievor argues that the employer argument did not reflect the discussion with the grievor asking her to stay at Rideau after the first six months, and the change of characterization to backfill. To the extent that there is an element in the employer’s practice of paying travel expenses when there is a change of institution, grievor’s counsel submitted that the extension at Rideau at the employer’s request was a change of institution, as she otherwise would have returned to OCDC.
As set out above, the grievor’s claim is based on a series of sources for entitlement to travel expenses, which will be addressed in turn:
The Regulation
Under the regulation, the question to be answered is whether the grievor was reporting to her normal place of work during the periods claimed. The dictionary (Canadian Oxford Dictionary, 2001) meaning of normal is “constituting or conforming to a standard: regular, usual, typical”. The answer to the question: “Where was the grievor usually/regularly/typically working?” between January 2, 2001 and April 29, 2003 is clearly Rideau. Similarly, between April 29, 2003 and December 31, 2004, the last date claimed, the grievor’s usual, everyday place of work was St. Lawrence. The Rideau period was over two years, and the St. Lawrence period over a year and a half, both periods long enough to qualify as normal, rather than as an exception. In these circumstances, I find that in each of the time periods claimed, the grievor was travelling to the institution which was then her normal place of work, and thus is not entitled to travel expenses under the Regulation.
Further, there is not a sufficient basis to find that an assignment that is documented for personnel purposes as a temporary assignment, as distinguished from an employee’s home position, defines that period as something other than an employee’s normal place of work, especially where the temporary assignments were of the length of the ones about which there was evidence in this case. Although the grievor considered her normal place of work to be her home position in Ottawa, and then at St. Lawrence when she won the permanent position, neither the plain meaning of the word “normal”, nor the wording of the regulation justify equating the two. As found in Melville, cited above, the terms “home position” and “normal place of work” are not necessarily synonymous. The Regulation does not use the term “home position”, but even if “home position” is equated with the employee’s headquarters, a term which is used in the regulation, the structure of the regulation clearly contemplates that one’s normal place of work and headquarters can be different places, as it says that expenses are payable if the employee is “not travelling to reach his or her normal place of work or his or her headquarters”. Thus, entitlement cannot be based on the fact that the grievor was travelling to an institution which was not her home position, unless it was also not her normal place of work. As I have found Rideau and St. Lawrence to be the grievor’s normal places of work in the periods in question, entitlement does not flow from the regulation.
The Staffing Operating Policy
The Staffing Operating Policy provides at pg. 17 that “all parties must agree in writing to the terms and conditions of the temporary assignment”, but says nothing about travel expenses. This aspect of the Staffing Operating Policy does nothing to bolster the grievor’s claim. In any event, when one looks at each of the grievor’s temporary assignments dealt with in evidence, there was some written confirmation of the terms.
The only temporary assignment for which no travel expenses were paid was the one to Rideau, which started before the grievor was confirmed as an Operational Manager. For this assignment, the letter confirming the placement made it very clear that no travel expenses were offered or agreed to. Much emphasis was placed on the fact that the grievor was requested to continue on in that assignment after the initial six-month period was finished. It is uncontested that she was requested to stay on, but there is nothing in the evidence that persuades me that the fact of being requested to stay created any entitlement to travel expenses. Although it might have been preferable if the terms of the extension had been reduced to writing, if only to avoid later disputes over what they were, the evidence before me supports a finding that the only term of the temporary assignment which was changed was its length, and that was done by mutual agreement between the grievor and her superintendent.
The period claimed at St. Lawrence was not a temporary assignment, and the alternative argument about the Williams decision is dealt with below.
The Practice
The evidence before me supports a finding that the employer’s practice at the time in question in the institutions in question was that generally if an employee was requested to leave one institution and go to another for a temporary assignment at the employer’s request, travel expenses were paid and, if it was at the employee’s request, or a developmental assignment, they were not. It is clear from Mr. Empey’s uncontradicted evidence that this was not a fixed entitlement, and that individual circumstances were taken into account, so that, as he said, if the employee lived down the street, travel expenses would not likely be paid. He testified that being fair and equitable in the consideration of when to pay travel expenses did not mean that each person would get the same thing. The evidence showed that there was a discussion with the individuals who received travel expenses prior to their being granted. And although it is true that these were not lengthy negotiations, there was some back and forth. In any event, a bargain can be struck by one party saying what was being offered, and the other party accepting it, as in the conversations with Mr. Hogarth with some of the managers who were without jobs when Rideau was decommissioned.
It is not necessary in this case to make a finding as to whether the employer’s practice should be considered a term or condition of the grievor’s employment. Nonetheless, even it were to be considered in that light, the evidence does not persuade me that it was breached. To the contrary, it convinces me that she was treated in accordance with that practice.
For the period the grievor was at Rideau, the evidence is clear that it was a developmental assignment at the grievor’s request, and no travel expenses were offered. Even though it continued past the date of her confirmation as an Operational Manager, the evidence does not persuade me that there is anything inappropriate about considering it as a continuing developmental assignment, as she was still gaining experience as a new Operational Manager. Further, when the grievor’s first six month assignment was extended, as noted above, there is no evidence that either party discussed any change except the duration of the assignment. It is notable that at that point, the grievor was still in an acting position, and continued to be a member of the OPSEU bargaining unit. At that time, her rights and entitlements flowed from the collective agreement, which are not enforceable in this forum. In any event, there is no evidence that either the grievor or the employer considered the extension of the assignment to be a change of institution, or a new request to leave one institution for another, either at the six-month mark, or when she obtained the permanent position at St. Lawrence in November 2001. The grievor continued on where she was, filling in because there was a need, but without the hallmarks of the situations where the other Operational Managers to whom the grievor compares herself were granted travel expenses: a request by the employer to move institutions on a temporary basis.
In any event, and as set out in all of the previous decisions cited above, there is no necessary entitlement to travelling expenses just because an assignment is temporary. The fact that there may be a persistent belief among some Operational Managers that all temporary assignments attract travel expenses does not make it a term or a condition of their employment. Many, but not all, temporary assignments at the employer’s request do attract offers of travel expenses, but, on the evidence before me, these appear to be mainly when the employer request is to leave one institution to go to another. When the temporary assignment is a change only of personnel documentation, but not of actual work location, as with Mr. MacPherson and Ms. Marshall at Rideau when they obtained positions at St. Lawrence, but continued to work at Rideau, the evidence does not show that travel expenses are a matter of course. The situation of the grievor in Antle, is similar in this respect as well. When Mr. Antle was successful in obtaining a permanent position at St. Lawrence, he was then considered temporarily assigned to Brockville where he lived, and had worked for years, while awaiting a reporting date. He was found not to be entitled to travel expenses, despite the fact that other managers, who moved from Rideau when it closed, to Brockville on temporary assignment, while waiting for transfer to St. Lawrence, were granted travel expenses.
As noted above, it was also argued that, once the grievor was transferred to Ottawa, and did not obtain one of the reduced number of positions at St. Lawrence, she should have been considered to have been temporarily assigned at St. Lawrence for her whole time there, and thus entitled to travel expenses on a retroactive basis. The grievor’s position at St. Lawrence was her home position, so that it does not fall into the definition of a temporary assignment set out above, which is limited to assignments other than a person’s home position. To consider the period the grievor worked at St. Lawrence a temporary assignment would require a retroactive re-characterization of the grievor’s success in the original job competition, for which there is no sufficient basis in the evidence. Even if there were some basis for considering the move to St. Lawrence temporary, given that there is no necessary entitlement to travel expenses for temporary positions, there would still need to be some other basis for the claim for it to be successful. Since there is no sufficient other basis on the evidence, this argument cannot succeed.
The Williams decision
The evidence does not persuade me that the Williams decision created a situation where the grievor’s terms and conditions of employment were breached, or negatively impacted in any way. The employer did not rescind the position she won in the competition dealt with in that decision. She was not a grievor in the Williams case, nor in a similar position as the grievor was in Sawyer, cited above, such that a similar remedial option was offered or warranted. Further, Ms. Marshall had actively sought the job at St. Lawrence, and was successful in obtaining it, even though she competed with Operational Managers with more experience. The fact that Ms. Marshall obtained the position she wanted at St. Lawrence through a process that was later judged by the Board to be flawed does not turn the benefit of being permanently promoted into a wrong that requires a remedy, especially when the Williams decision was implemented in a manner that did not dislodge her from her permanent OM16 position. Moreover, at the time of her confirmation at St. Lawrence, she was offered relocation expenses which could have obviated the need for her commute to St. Lawrence, but she did not take up that option. Although she was perfectly entitled to make that choice, it does not assist a finding that the employer is responsible for the continued travel expenses while the grievor was at St. Lawrence.
The period involved in all the grievances discussed in this decision was full of momentous change in the prison system in Ontario, and large numbers of employees were caught in the cross-currents of those changes as institutions were decommissioned, commissioned, planned and unplanned. Many people’s expectations and lives were affected in unanticipated ways. However, the Board is not able to offer remedies for such events, unless they involve a breach of one’s terms and conditions of employment, some wrong for which the law provides a remedy. On the evidence before me, the fact that the grievor was not paid travel expenses in the period claimed is not such a breach.
For the above reasons, the grievance is dismissed.
Dated at Toronto this 11th day of July, 2007