December 8, 2014
21.4.1072
Background
The grievors were on assignment outside of their headquarters area, travelling daily for periods ranging between five months and one year. When reimbursing the grievors for their travel costs to the assignment location, the Employer subtracted the distance between the grievors' residences and their usual workplace from the distance travelled, rather than reimbursing the complete distance travelled. At the second level hearing, the DLO noted that reimbursing an adjusted travel distance, rather than the full distance travelled while on travel status, was a misapplication of the Travel Directive, and upheld the grievance in part. However, the grievance was considered to be continuing in nature. Consequently, the corrective measures were limited to the 25 working days prior to when the grievance was filed, in keeping with the principles established in Coallier (FCA, 1983).
Bargaining Agent Presentation
The four grievors were assigned to positions outside their 16 km headquarters area. Thus, their workplace changed temporarily, as each of them signed an assignment agreement with a start and end date. Due to the assignments, from the start of their assignments, the grievors were entitled to compensation (for mileage and meals) set out in the Travel Directive.
In August 2012, one of the grievors was refused a portion of the claim that had been completed as the grievor usually did, to claim the mileage from the grievor's home to the new workplace. At that time, the grievor was advised by email of a new interpretation of the Directive for costs reimbursable during assignments. A Finance representative informed the grievor that the claim would be reduced from then on by the mileage between the grievor's home and usual workplace and indicated that the new interpretation was effective retroactive to July 1, 2012. The grievor tried to obtain more information on the new interpretation, notably by requesting a copy of the memo setting out the new directive, in response to which the grievor was told that none existed. The grievors in question were not given any explanation other than that the Department had apparently submitted typical cases to the Treasury Board and apparently had received that interpretation.
Therefore, the grievance was filed in May 2013. The grievance was denied at the first level, however, allowed at the second level based on the decision in Lannigan et al. v. Treasury Board(2012 PSLRB 31), and the NJC Executive Committee's decision 21.4.965 and 21.4.967, in which all mileage that grievors incur on assignments or secondments outside their headquarters areas must be reimbursed to them.
The representative noted that although the second level allowed the grievance on its merits, the fundamental issue of the grievance is the fact that the Employer considered the grievance to be a continuing grievance and therefore limited the reimbursement to the 25 business days before the grievance was filed. The Bargaining Agent representative argued that the Union's position, however, is that the grievance cannot be treated as continuing, and the corrective measures cannot be limited to what could be granted under a continuing grievance.
Firstly, the decision was made at a specific moment in time and was shared with the grievors, although unofficially, as the Employer never issued a memo. In August 2012, one of the grievors was made aware of the new procedure, and furthermore, that the Employer was applying the interpretation retroactively to July 1, 2012. In September 2012, one of the grievors was told that no memo existed. Five days later, the shop steward emailed the immediate supervisor, in accordance with article 32 of the collective agreement, to suspend the deadlines to protect the grievance rights and to be able to pursue discussions with the Employer to find a solution. The shop steward emailed Financial Services in an attempt to find a solution, to no avail. The Union then researched PSLRB and NJC decisions to determine the merits of the case with respect to the new interpretation. The Union tried to obtain a copy of the interpretation that the Treasury Board apparently gave to the Department, but it was unsuccessful.
After finding that the Employer was not able to provide any documentation to support the new interpretation, the grievance was filed in 2013. A final attempt at discussion was even made, after the grievance was filed but before it was heard at the first level, between the parties, however, at that stage, the Union's and the Employer's positions were irreconcilable.
The representative maintained that in light of the actions taken to suspend the grievance and hold discussions with the Employer, the intent was to protect the right to corrective measures based on the decision rendered in August 2012. Otherwise, there would have had been no need to suspend the deadlines. The deadlines to file the grievance were suspended in accordance with article 32 of the collective agreement to protect the right to redress while attempting to discuss with the Employer to reach an amicable solution. The Bargaining Agent representative stressed that this was never considered as a continuing grievance; it was to challenge a decision made at a specific time that applied a new interpretation. The representative argued that consequently, the grievors must be compensated retroactively for the entire period since the new calculation method was first applied, and not only for the 25 business days before the grievance was filed in May 2013.
The representative also noted that although the second level allowed the grievance (despite the ongoing disagreement about the period subject to the corrective measure), no grievor has received any reimbursement to date following the grievance being partially allowed. The Employer has not carried out the corrective measure.
For all the above reasons, the Bargaining Agent representative requested that the Committee allow the grievance, and apply the corrective measures retroactively to July 2012 as this is not a continuing grievance but rather a challenge of the Employer's new decision and furthermore the deadlines were suspended in accordance with the collective agreement.
Departmental Presentation
The Departmental representative began by confirming that the grievors were on travel status outside their headquarters area. Consequently, their meals were paid; so were the total kilometers travelled before July 2012. However, as of July 2012, the kilometers travelled, reduced by the distance between the grievor's residence and the usual workplace were reimbursed, as well as meals.
Given the NJC Executive Committee's decision (21.4.965 and 21.4.967), the Department acknowledged that an error was made in applying the Directive. When the error was discovered, the grievance was allowed at the second level, and corrective measures were applied in accordance with the grievance's continuing nature.
The Departmental representative noted that in Canadian Labour Arbitration, Brown and Beatty clarify as follows how to determine whether grievances filed by grievors can be considered continuing grievances, "Continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach. . . In any event, the test most commonly used in determining whether there is a continuing violation is the one derived from contract law, namely, that there must be a recurring breach of duty, and not merely recurring damages." The representative maintained that this was exactly the case for the grievors. As of the month of July 2012, they saw each of their travel claims systematically amended, in that Financial Services deducted the return-trip mileage normally travelled between their homes and regular workplace from the return-trip mileage between their homes and workplace during their assignment. They were victims of repeated breaches of the collective agreement during different assignments rather than a single or isolated breach. All claims as of July 2012, submitted on different dates by the four grievors, were treated in the same way.
The same application of the Directive occurred in the files 27.4.965 and 21.4.967, and the NJC Executive Committee concluded that the grievances were continuing. It limited the adjustment to 25 days, according to the principles set out in Coallier. To ensure that the principles established in Coallier and in the NJC Executive Committee's decisions were applied correctly, the Department obtained a legal opinion, which reaffirmed the interpretation. According to the legal opinion, the agreement to suspend the deadlines was clear and aimed at preserving the right to file a grievance. However, that agreement did not preclude applying the deadline to the scope of the adjustment, which is mandatory.
The representative concluded by emphasizing that the grievances were continuing. Therefore, the Departmental Liaison Officer (DLO) limited the scope of the adjustment to 25 days before the date on which the grievances were filed, excluding Saturdays, Sundays and designated paid holidays. If the grievors were not treated within the intent of the Directive in a continual manner as of July 2012, the error was corrected by the DLO, who applied the corrective measures according to the NJC By-Laws and the principles set out by the NJC Executive Committee. For those reasons, the Employer considers that the grievors were treated within the intent of the Directive after the NJC's second-level response and respectfully requests that the Government Travel Committee to deny the grievance and corrective action.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded that the issue related to the intent of the Travel Directive was rectified at the second level of the grievance process. However, the Executive Committee did not agree that the matter was of a continuing nature given that the Employer had changed its interpretation of the Travel Directive and that there was a joint agreement to put the issue in abeyance pending informal discussions. As such, the grievances are upheld and corrective action is retroactive to July 1, 2012, when the Employer applied the new interpretation to the Directive.