April 25, 2013
21.4.965, 21.4.967
Background
The grievors are assigned to a Hospital Surveillance Team. Their regular workplace is located approximately 36 km from the Hospital.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievors were previously reimbursed mileage and applicable meal allowances while on travel status at the Hospital however the Department subsequently reversed its practice. The representative explained that although there was no fundamental change to the grievors' situation, the Department now deducts the kilometres normally travelled from their homes to their permanent workplace from the kilometres claimed while on travel status at the Hospital. Likewise, grievors working the night shift are no longer provided with the breakfast meal allowance but rather are only reimbursed for one meal allowance.
The representative also submitted that these constitute continuing grievances and that established case law supports this interpretation.
Departmental Presentation
The Departmental representative explained that employees who worked the day shift at the Hospital were provided with both a hot lunch and dinner per a contractual agreement with the Hospital. Effective April 2, 2004 employees on the day shift could supplement the meal provided with a meal purchased from the staff cafeteria upon presentation of a receipt. Those choosing to do so would be reimbursed to a maximum of $9.00 per meal. Employees working the night shift were provided the lunch and dinner meal allowance as the cafeteria was not open during their hours of work.
The representative noted that section 3.2.9 of the Directive precludes the payment of a meal allowance when a meal is provided. She therefore submitted that the grievors on the day shift were not entitled to receive meal allowances for either lunch or dinner. Furthermore, the Department is not required to provide the breakfast meal allowance as the grievors on both shifts did not claim such an allowance. Also, it is reasonable to expect that the grievors would eat breakfast at home, given the shorter distance and travel time to their workplace, and would have departed later.
The representative also indicated that the Hospital is significantly closer to each of the grievors' residences than their regular workplace. Section 3.2.11 of the Directive states:
When authorized travel or overtime causes a disruption in the employee's regular commuting pattern, the employee shall be reimbursed for additional transportation costs incurred between the residence and the workplace.
The representative argued that as all of the grievors live closer to the Hospital than their workplace the change in commuting pattern did not incur any additional transportation costs. The Department therefore deducted the distance between the grievors' residences and the workplace from the distance travelled from their respective residences to the Hospital. In the event that the distance travelled to the Hospital was greater than the distance travelled to the workplace, employees were reimbursed the difference. The representative submitted that to reimburse the grievors in accordance with the kilometric rates found in the Directive when they are travelling a shorter distance than when they report to the workplace would open the way for personal gain and thus violate the intent of the Directive.
The representative also indicated that the nature of the grievances presented cannot be changed following the second level of the grievance process. The representative explained that while some grievors claimed the reimbursement of both meal allowances and the kilometric rate, others claimed one or the other. Consequently, it is outside of the Executive Committee's jurisdiction to grant corrective action that was not sought via the grievance presentation.
The representative therefore requested that the grievances be denied. However, in the event that the grievances are allowed, the Department asks that the principles from the Coallier decision and the non-continuous nature of the grievances be taken into account. The Department is of the view that the grievances are not continuous but rather allege an isolated breach that occurred on a specific date. As such, the representative submits that the principles outlined in the Coallier decision are applicable and any remedy awarded should be limited to twenty five days before the date on which the grievance were filed, excluding Saturdays, Sundays and designated paid holidays.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Travel Committee which concluded that the grievors had not been treated within the intent of sections 3.2.9 and 3.2.11 of the NJC Travel Directive. The Committee notes that the grievors are not entitled to a meal allowance when a meal was provided however in situations where employees ate at the staff cafeteria they are entitled to reimbursement up to the maximum allowable under the Directive upon presentation of a receipt. With respect to the grievors who worked the night shift, they are entitled to the applicable meal allowances in sequence: lunch and dinner.
On the issue of mileage, the grievors should be reimbursed for the full distance travelled while on travel status.
The Committee found the grievances to be continuing in nature and limited the remedy to 25 days prior to the point at which the grievors were informed of the circumstances giving rise to the grievances. As such, the grievances are upheld.