FPSLREB Decisions

Grievance referred to adjudication

1 This is a dispute about reimbursement for travel expenses that centres on the interpretation of a federal government Travel Directive. That Travel Directive (“the Directive”), effective October 1, 2002, was developed in a partnership between the Treasury Board, as the formal employer of federal employees, and the representatives of bargaining agents for those employers, operating through an employer/union organization called the National Joint Council of the Public Service of Canada (NJC). The dispute arose because Dr. Ann Allain and Dr. Audrey Fraser-Layes (“the grievors”), who worked for the Canadian Food Inspection Agency (CFIA or “the employer”) primarily out of its Establishment 7KK in the Nova Scotia’s Annapolis Valley, were denied claims in relation to travel to another temporary workplace in their local area. The grievors were in a bargaining unit represented by the Professional Institute of the Public Service of Canada (PIPSC). The collective agreement between PIPSC and the CFIA regarding the Veterinary Medicine (VM) Group Bargaining Unit, signed on May 27, 2002, governs these events (“the collective agreement”). Article G3 of the collective agreement provides that NJC agreements, such as the Directive, may be included by reference in the collective agreement, which in fact, occurred in this case. The grievances of the grievors were perfected and advanced by the bargaining agent on November 1, 2004; both related to expenses incurred in 2003 and 2004. Any potential objections arising from delays in filing the grievances, or in processing them through the levels of the grievance process under the collective agreement and the Directive’s procedures, have been waived by the parties in their mutual desire to have the substantive interpretational dispute in issue adjudicated.

2 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

3 The matter came before me for hearing in Halifax, Nova Scotia, on February 4 and 5, 2009. At that time, the parties presented an agreed statement of facts and introduced virtually all exhibits referred to by the witnesses through mutual agreement. Only two witnesses were called, both by the bargaining agent. One was Alan H. Phillips, Atlantic Regional Representative for PIPSC, who spoke to the processing of the grievances and exchanges between PIPSC and CFIA representatives concerning, among other things, the PIPSC’s interpretation of the Directive and its attempts to get a definitive ruling on interpreting the Directive from the NJC. The other witness was Dr. Allain, one of the grievors and a shop steward for the PIPSC at relevant times, who gave evidence as to the factual genesis of both grievances. The summary of the factual matters giving rise to the grievances, set out below, is drawn from all the foregoing sources of evidence, which were adduced at the hearing. There was little factual dispute between the parties. The matters in issue related to how certain events should be characterized and to how to properly interpret the Directive in light of those events.

Summary of the evidence

4 The grievors, as veterinarians, inspected poultry in abattoirs to ensure that animals being slaughtered and introduced into the food chain met Canadian food inspection standards. Their “permanent workplace” (to use the Directive’s terminology) was in Canard, Nova Scotia, in the Annapolis Valley. By coincidence, Canard was approximately 38 km, one way, from each of the grievors’ residences, although their residences were in quite different localities. From time to time, each grievor was assigned to work at a poultry abattoir that was located some 11.5 km from their permanent workplace. This was acknowledged to be a “temporary workplace” in accordance with the Directive’s terminology. As such, the temporary workplace was within the 16.5 km radius around the permanent workplace which defines the “headquarters area” of the “permanent workplace” in accordance with the Directive. Dr. Fraser-Layes’ residence was located 33.1 km from the temporary workplace, while Dr. Allain’s was 33.2 km from the temporary workplace. Thus, the distances from each grievors’ residence to the temporary workplace were shorter than the distances from their residences to the permanent workplace (38 km in each case).

5 Relevant portions of the Directive, at it then read, are as follows:

Principles

The following principles were developed jointly by the Bargaining Agents representatives and the Employer side representatives to the National Joint Council. These principles are the cornerstone of managing government business travel and shall guide all employees and managers in achieving fair, reasonable and modern travel practices across the public service.

Trust – increase the amount of discretion and latitude for employees and managers to act in a fair and reasonable manner.

Flexibility – create an environment where management decisions respect the duty to accommodate, best respond to employees’ needs and interests, and consider operational requirements in the determination of travel arrangements.

Respect – create a sensitive, supportive travel environment and processes which respect employees’ needs.

Valuing people – recognize employees in a professional manner while supporting employees, their families, their health and safety in the travel context.

Modern travel practices – introduce travel management practices that support the principles and are in keeping with travel industry trends and realities; develop and implement an appropriate travel accountability framework and structure.

…

Purpose and scope

The purpose of this directive is to ensure fair treatment of employees required to travel on government business consistent with the principles above. The provisions contained in this directive are mandatory and provide for the reimbursement of reasonable expenses necessarily incurred while travelling on government business and to ensure employees are not out-of-pocket. These provisions do not constitute income or other compensation that would open the way for personal gain.

…

Headquarters area – spans an area of 16 kms from the assigned workplace using the most direct, safe and practical road.

…

Traveller – a person who is authorized to travel on federal government business.

Workplace

Permanent/Regular – the single permanent location determined by the employer at or from which an employee ordinarily performs the work of his or her position or reports to.

Temporary – the single location where an employee is temporary assigned to perform the work of his or her position or reports to within the headquarters area.

…

1.9 Workplace change

1.9.1 When an employee is assigned from a permanent workplace to a temporary workplace for a period of less than thirty (30) consecutive calendar days, the provisions of this directive shall apply.

1.9.2 When an employee is assigned from a permanent workplace to a temporary workplace, for a period of 30 consecutive calendar days or more, the provisions of this directive shall apply unless the employee is notified, in writing, 30 calendar days in advance of the change of workplace. In situations where the employee is not notified of a change of workplace in writing, the provisions of the directive shall apply for the duration of the workplace change up to a maximum of 60 calendar days.

…

These provisions are applicable to the grievors. In particular, it was agreed that Dr. Allain’s evidence, and the documents presented from both grievors and agreed to by the parties, demonstrate that section 1.9 was relevant. The grievors were regularly assigned shifts in a temporary workplace away from the permanent workplace for less than 30 days, and with less than 30 days notice. None of the assignments exceeded the 60-day maximum.

6 In terms of the substantive rules found in the Directive, which are relevant to the arguments advanced by the parties, the following sections are critical:

…

3.1 Module 1 – Travel within Headquarters Area – No overnight stay

The provisions outlined in this Travel Module apply when an employee is away from the workplace on government business travel within the Headquarters Area without an overnight stay.

…

3.1.11 Transportation

When authorized travel or overtime causes a disruption in the employee’s regular commuting pattern, the employee shall be reimbursed additional transportation costs incurred between the residence and the workplace.

When conditions under workplace change are not met, transportation shall be provided to the temporary workplace or the kilometric rate paid for the distance between the home and the temporary workplace, or between the permanent workplace and the temporary workplace, whichever is less.

…

When an employee has been authorized to use and uses a private vehicle within the headquarters area on government business travel, the employee shall be reimbursed the kilometric rate in accordance with Appendix B.

…

These rules are relevant because the grievors travelled by car from their residences to the temporary workplace on the various occasions in relation to which they submitted claims in 2003 and 2004, which travel was after the effective date of the Directive in 2002. However, Dr. Allain indicated that, at the times to which the claims related, she had not actually seen the Directive. She only learned of its existence shortly before she and Dr. Fraser-Layes submitted their grievances. The main point, as the grievors understood it, was that when they were assigned to a temporary workplace rather than their permanent one, they were entitled to compensation for travel costs. The bargaining agent, the PIPSC, was in agreement with this general proposition. But the grievors submitted full claims for the relevant kilometric rate calculated on the round trip distances between their respective residences and the temporary workplace (66.4 and 66.2 km, respectively), which created the controversy.

7 The grievors’ supervisor apparently spoke to the CFIA’s “Area Human Resources, Moncton,” and then denied the claims on the ground that the policy “… does not include travel from the residence to a temporary worksite within the area headquarters (deemed to be 16 kms radius).” However, the supervisor met with the grievors and Mr. Phillips at a first-level grievance Proceeding on December 8, 2004. On December 24, 2004, he wrote his first level reply. While asserting that the grievance was “untimely,” the supervisor partially upheld the grievance based on a new interpretation of section 3.1.11 of the Directive, which he interpreted as entitling the grievors to the lesser of (a) “… a kilometric rate paid for the distance between the home and the temporary workplace or (b) … the kilometric rate paid for the distance between the permanent workplace and the temporary workplace.” However, the first-level response letter limited compensation to “… days claimed within a period of 25 days prior to the day you submitted your claim” and also limited compensation to one way and not “round trip” travel. At the hearing before me, both the bargaining agent and the employer agreed that that method of calculation did not comply with the Directive. However, the parties’ bases for doing so were diametrically opposed, for reasons which will be revealed below.

8 Mr. Phillips, on behalf of the PIPSC, in accordance with what he considered normal NJC practice in disputes over travel claims, contacted the CFIA’s senior staff relations officer, Paulene Bourgault. Ms. Bourgault stated that the grievances should be held in abeyance and dealt with under an agreement reached between Josée Deryckx, representing the employer, and Michel Gingras, representing the bargaining agent, over a series of similar disputes concerning the interpreting the Directive. Mr. Phillips understood that Ms. Deryckx and Mr. Gingras had agreed to bury the hatchet in a series of long-standing disputes over the Directive by stipulating that they would abide by NJC Executive Committee rulings on the interpretational matters at issue and that a ruling was being sought at that time. At stake was the interpretation of what in this hearing was called “the lesser rule,” that is, the second paragraph (quoted above) from section 3.1.11 of the Directive.

9 The PIPSC, through Mr. Gingras, received a letter from Dan Butler dated July 19, 2005, in Mr. Butler’s then capacity as the secretary general of the NJC. The original letter was written in French, but Mr. Phillips had a copy translated to enable his consideration of the interpretation issue in these grievances. That translation reads as follows:

The NJC Executive Committee met on July 8, 2005 and reached a determination with respect to the request for interpretation dated January 5^th of this year submitted by the Professional Institute under your signature. The Executive regrets the delay in making its determination but wished to ensure that it received full and considered advice from the Government Travel Committee on this matter before making its decision.

Your request asks “whether the travel directive subtracts, from the kilometrage reimbursable to an employee, the distance between his residence and his permanent workplace, or if the actual distance between the residence and the (temporary) place of duty is not taken into account where the employee’s point of departure is not his permanent workplace”.

The Executive Committee has considered and agreed with advice provided to it by the Government Travel Committee to the following effect: The Travel Directive does not instruct managers or employees to subtract the distance between the employee’s residence and permanent work place from the calculation of actual kilometres travelled.

The Executive Committee notes that there has from time to time been some confusion between the parties in interpreting the relevant provisions of the Directive. To alleviate this confusion in the future, the Government Travel Committee has been asked to develop a communications tool illustrating the correct interpretation of the Directive for use by employees and managers.

Thank you for referring this matter for interpretation.

Mr. Phillips’ understanding of the letter to Mr. Gingras was that the interpretation of the Directive was in accordance with the bargaining agent’s view that the grievors were entitled to full compensation for round trip travel between a temporary workplace and their residences when sent on short-term assignments (less than 60 days) with/or without 30 days’ notice.

10 Mr. Phillips then “reactivated the grievances” of Dr. Allain and Dr. Fraser-Layes on the expectation that they would be allowed. However, he was surprised that the CFIA was simply not willing to allow the grievances. On August 10, 2005, Mr. Phillips had emailed Maria Schiavone, a finance officer with the employer’s office in Montreal. Instead of a positive response in light of the NJC’s interpretation, Ms. Schiavone’s email reply was equivocal. She said that the file needed to be “reviewed” because the employer now understood that it related not merely to a claim for “… additional kilometers driven between the residence and a work location” but rather a matter relating to “work change location.” This baffled Mr. Phillips, who became concerned about what he considered to be the employer’s “… backing down on the previous understanding.”

11 Mr. Phillips then pressed the matter forward to the second level of the grievance process. That hearing, with Steve Black, the employer’s director of labour relations, was held on November 9, 2005. At that time, Mr. Phillips argued that the NJC’s ruling as conveyed by Mr. Butler would apply to support the grievors’ claims for full reimbursement of their round trip travel between their residences and their temporary work locations. Mr. Black denied the grievance and also indicated that he had no knowledge of any agreement between Ms. Deryckx and Mr. Gingras which might be relevant. Mr. Black’s formal response to the grievances was transmitted to the grievors in letters dated January 17, 2006. Paragraphs 3 and 4 of those letters, which are identical, nicely summarize the employer’s position. They read as follows:

The Travel Directive indicates that the term “workplace” can only be applied within the headquarters area. As such, a temporary change in an employee’s workplace can only take place within 16 kilometres of their normal work location. As indicated in section 1.9.2 of the Travel Directive, when an employee is assigned to a temporary workplace within the Headquarters area for less than 30 days, or if the employee is given less then 30 days’ notice of a workplace change, the employee is entitled to the kilometric rate between the residence and the temporary workplace, whichever is less. Accordingly, you are entitled to payment of the kilometric rate between the permanent workplace and the temporary workplace, which is 11.5 km.

Accordingly, your grievance is upheld to the extent that you are entitled to payment of travel expenses to and from Registered Establishment 139 and Registered Establishment 7KK.

PIPSC evidently disagreed with this position.

12 The next step in the grievance process in such matters under the jurisdiction of the NJC was for the bargaining agent to go to the NJC’s Travel Committee for an interpretive ruling, which was done. However, the NJC and its subcommittees are bipartite bodies which have equal numbers of representatives from both the federal government and representative bargaining agents. On April 24, 2007, Barry Fennessy, the NJC’s new general secretary, wrote to Patti Bordeleau, the employer’s new executive director of Labour Relations Division, in the following terms:

Subject:        Dr. Ann Allain and Dr. Audrey Fraser

Dear Ms. Bordeleau:

The NJC Executive Committee met on March 20, 2007 and considered the above-cited grievances in regard to Travel Expenses.

The Executive Committee considered the report of the Government Travel Committee. Although it was agreed that the situation represented a workplace change as defined in 1.9.1 of the Travel Directive, the parties could not come to an agreement with regard to the entitlements. As such, the Executive Committee reached an impasse.

Please transmit the whole of the above decision to the grievor in accordance with paragraph 15.1.15 of the NJC By-laws.

In other words, the NJC was deadlocked, and Mr. Black’s decision was left undisturbed – the grievances were still denied. The PIPSC pressed the matter forward to adjudication with the Public Service Labour Relations Board. This decision is the result of that referral process pursuant to paragraph 92(1)(a) of the Public Service Staff Relations Act concerning the interpretation of a provision of the collective agreement.

Summary of the arguments

13 The argument from the PIPSC centres on the proposition that these grievances fall to be determined under the NJC’s decision. That decision resulted from Mr. Butler’s interpretation in response to a request referred to above from Mr. Gingras of the bargaining agent. The context for this request, according to Mr. Phillips, was that the CFIA had issued a bulletin interpreting the Directive with which the PIPSC disagreed. For a time, a sort of interpretational “virtual war” seemed to be taking place between the parties, where the employer issued its bulletin on travel entitlements, and the PIPSC posted a countervailing electronic interpretation on its website. Unfortunately, these “virtual documents” were unavailable at the hearing. Such are the ephemeral vagaries of electronic communication. What was available at the hearing, however, was Mr. Gingras’ “Request for Interpretation – Travel Directive” sent to Mr. Butler on December 21, 2004 (shorn of its purported enclosure). The body of that letter reads as follows:

Dear Sir:

The Canadian Food Inspection Agency recently issued a bulletin providing an interpretation of the application of the Travel Directive to travel expenses reimbursed to employees.

The Institute believes that the interpretation published by the employer is inconsistent with the spirit of the Travel Directive. Consequently, the Institute is requesting the National Joint Council an interpretation of the following.

A)      The Travel Directive states in Part III, paragraph 3.1.11: “When authorized travel or overtime causes a disruption in the employee’s regular commuting pattern, the employee shall be reimbursed additional transportation costs… incurred between the residence and the workplace.”

B)       In Part I, paragraph [3.1.11] the parties agree that the original reference to 1.9.3 in Mr. Gingras’ letter was in error] , the same Directive stipulates: “When conditions under workplace change…are not met, transportation shall be provided to the temporary workplace, or the kilometric rate paid for the distance between the home and the temporary workplace, or between the permanent workplace and the temporary workplace, whichever is less.”

C)      In December 2004, the CFIA issued a bulleting (enclosed) to the effect that employees on government business shall be reimbursed only for the additional distance to the temporary workplace beyond the distance normally travelled between their residence and their regular place of work.

The bulletin issued by the employer seems to apply the rule in effect at the time of the former travel directive.

The NJC is requested to state whether the Travel Directive subtracts from the employee’s reimbursable kilometrage the distance between his residence and his regular place of work, or whether it takes into account only the actual distance between the residence and the temporary place of government business when the employee’s point of departure is not his regular workplace.

For example

The employee’s residence is point “A”.

Point “B” is the employee’s regular place of work, located 10 kilometres from point “A”.

Point “C” is the temporary place of work located 30 kilometres from point “A”.

The employee travels directly from “A” to “C”, or a distance of 30 kilometres. The Institute believes that the employee is to be reimbursed for 30 kilometres, where management’s interpretation is 20 kilometres.

We look forward to your reply.

[Sic throughout]

In some considerable measure, the argument of the parties revolves around the applicability of the example at the end of Mr. Gingras’ letter to the circumstances of the grievors in this case.

14 It may be helpful at this point to set out in full the email exchange between Mr. Gingras and Ms. Deryckx on which the bargaining agent relies. The message from Mr. Gingras reads as follows:

Josée:

Please indicate your concurrence with the following understanding as to the management of the issue of “kilometric allowance”:

The Institute has sought an interpretation from the NJC, as to how the kilometric allowance is to be paid out to CFIA employees, as it disagrees disagree [sic] with the employer’s application of the “lesser rule”, following an employer interpretation bulletin issued in the fall of 2004, on the understanding that the NJC will be discussing this matter on March 10, 2005 and issue an opinion forthwith.

In order to not overload the grievance system on both sides of the table, the Institute and the CFIA agree to the following:

- The parties will live with whatever the NJC’s recommendation/opinion is on the matter above,

- The Institute will not encourage the filing of further grievances on the issue of the kilometric allowance in the current context,

- Grievances currently in the CFIA system are placed in abeyance until such time as the parties receive the NJC decision,

- Should the NJC endorse the Institute’s version of the Travel Directive, the employer will re-calculate all travel claims going back to [sic] time it issued its directive in November 2004, irrespective of grievances having been filed or not.

- As the Institute agrees to accept the NJC decision as it applies to the CFIA, in the context above, no related grievances will proceed to an eventual adjudication.

Ms. Deryckx’ brief reply simply reads: “Hi Michel, As [sic] discussed, we concur with the text. Josée.” This exchange clearly makes no references to the details of any factual or hypothetical situations in dispute, although there appear to have been a number of them.

15 The bargaining agent, the PIPSC, argues that Mr. Gingras simply requested an interpretation of the “lesser rule” in section 3.1.11 of the Directive in the paragraph immediately preceding his closing example. That paragraph, quoted in Mr. Butler’s reply, set out at paragraph 9 of this decision, reads as follows:

Your request asks “whether the travel directive subtracts, from the kilometrage reimbursable to an employee, the distance between his residence and his permanent workplace, or if the actual distance between the residence and the (temporary) place of duty is not taken into account where the employee’s point of departure is not his permanent workplace”.

The PIPSC then argues that the following sentence from Mr. Butler’s response, in its literal wording, binds the employer by virtue of the Deryckx-Gingras agreement:

The Travel Directive does not instruct managers or employees to subtract the distance between the employee’s residence and permanent work place from the calculation of actual kilometres travelled.

Thus, implied the PIPSC, the grievors need not subtract from the 38 km the 33.1 km or 33.2 km that they were claiming; rather, they were entitled to the whole amount. The verb “implied” was used in the foregoing statement because, for understandable reasons, the PIPSC stayed away from explicitly stating (although it acknowledged) that the grievors were seeking reimbursement for travel to a temporary workplace when they would not be entitled to reimbursement for travel to their permanent workplace even though it was farther away than the new location.

16 This argument that the grievors should be paid for travel to the temporary workplace, when it was closer to their permanent workplace for which they got no reimbursement, seems counterintuitive. However, the employer acknowledges that the Directive does allow for some reimbursement in such circumstances, but not the full amount sought by the bargaining agent on behalf of the grievors. The employer’s argument to be rehearsed below, admits that the grievors are indeed entitled to a “lesser amount,” which for to Dr. Allain would be $567.18 in addition to the amounts already received from the decision at the first level of the grievance process, and for Dr. Fraser-Layes, the corresponding amount would be $1248.79. Perhaps not surprisingly, the bargaining agent argues, in the alternative, that if its claim for full entitlement to reimbursement for round trip travel from the grievor’s home to the temporary work location is unsuccessful, the grievors are entitled to the lesser amounts agreed to by the employer.

17 The employer’s argument, in essence, is that the PIPSC received an interpretation from the NJC which was correct insofar as it went, but that it is not applicable to the facts of this case. The employer says that the Butler letter and the Gingras example apply to reimbursement for travel outside the headquarters area, but that “the lesser rule” in section 3.1.11 of the Directive is not engaged by either the Butler reply or Mr. Gingras’ original request. The employer argues that the grievors are bound by the literal wording of the Directive as applied to their circumstances. Their circumstances involve an assignment to a temporary work location within the headquarters area, which is defined as a 16 km radius around the permanent workplace. The employer argues that neither the Gingras request for an interpretation of the Directive nor the Butler reply address these particular circumstances. As such, says the employer, one cannot take the literal wording of the Butler interpretation out of the context of the factual example upon which it was based, and then apply it to contradict the “clear provisions of the Directive.”

18 Those words, “clear provisions of the Directive,” are in what some might now call “scare quotes” because the employer, in argument, like Mr. Butler in his missive to Mr. Gingras, acknowledged that the Directive has caused “… some confusion between the parties …” Moreover, the Government Travel Committee did indeed develop “… a communications tool illustrating the correct interpretation of the Directive for use by employees and managers …” as suggested by Mr. Butler. That “communications tool,” entitled “Kilometric Rates, Questions and Answers, December 2005,” was put in evidence for purposes of argument. The correctness of that document as a whole is certainly not an issue in this adjudication, and this decision should not be interpreted as an approval of all that is found in that document. However, it must be said (as the employer pointed out) that the document makes a helpful distinction in its examples between general “… official government business travel from [an employee’s] home to the travel duty destination…” and the particular situation where “… an employee is assigned to a temporary workplace in the Headquarters area and travels to the temporary workplace by [private motor vehicle]…” Full reimbursement is authorized in the former case, but reimbursement is only in accordance with the “lesser rule” in the latter case.

19 The employer’s argument rests on the assertion that the hypothetical in Mr. Gingras’ letter does not refer to travel to a location within the headquarters area. However, the Gingras hypothetical does, apparently, address a problem which arose from a former common practice. That former practice, which had a certain intuitive logic, was to subtract the distance from the employee’s home to his or her permanent workplace when the employee travelled to an alternate work location that was farther away from his or her home. The idea was that, while you normally did not get paid for daily travel to work, you could get paid for the extra travel distance to an occasional alternate work location. That practice is clearly inconsistent with the present Directive, which makes a primary distinction between travel inside and outside the headquarters area. Under the logic of the current Directive, an employee receives full reimbursement for travel to a “travel duty destination” which is outside the headquarters area even if the distance happens to be less than the regular distance to the permanent workplace. One does not subtract the distance from the permanent workplace from the distance to the temporary workplace under the current Directive. This may be counterintuitive in some circumstances. However, as the employer argues, Mr. Gingras’ example at the end of his letter raised that result and Mr. Butler approved it in the third paragraph of his reply. This is not, in the employer’s view, the circumstance in which the grievors found themselves.

20 In support of its argument, the employer cited two Public Service Staff Relations Board decisions which dealt with travel policy grievances: Fuller and Fryer v. Treasury Board (Agriculture Canada), PSSRB File Nos. 166-02-15276, 15277, 16068 and 16069 (19870617), and Vijh v. Treasury Board (Revenue Canada), PSSRB File Nos. 166-02-26509, 26510, 26512, 26513, 26514 and 26516 (19951204), both in their full, unreported versions. However, while each provided interesting examples of travel policy problems, neither dealt with the current Directive, and both turned on facts which were very different from the circumstances of the grievors. As counsel for the employer acknowledged, neither case constituted anything like a truly relevant precedent. The present situation constitutes a “case of first impression” to be decided on its own facts, and on interpretation of the Directive, which is incorporated in the collective agreement.

Reasons

21 One cannot help but have some sympathy for the grievors and the personnel working for the bargaining agent in this case. The Directive is very complex and not easy to understand. The grievors regularly had their normal routines disturbed by assignment on short notice to overnight shifts at a temporary workplace. They did not like this. When the grievors became aware that they had some entitlement to reimbursement for travel expenses for the trips from their residences to their temporary workplace, they were faced with conflicting interpretations from the employer and the bargaining agent as to the details of those entitlements. As was candidly acknowledged by counsel for the employer at the hearing, both the initial denial of the grievors’ travel claims by their immediate supervisor and his partial allowance of their claims at the first level of the grievance process were erroneous. In particular, limiting their entitlement to an equivalent to one-way travel between the permanent and temporary workplaces sold the grievors short in principle and in fact. The PIPSC, which thought that it had an understanding with the employer for a comprehensive process for resolving these and other disputes through a reference to the NJC, was frustrated by the immediate outcome of that process, which failed to resolve all the complexities of the Directive and left the grievors unsatisfied following a deadlock in the NJC’s Travel Committee.

22 Despite the sympathies that one might have for the grievors and for the bargaining agent, the employer, too, faced difficulties. The Directive is complex and indeed benefits from the kind of explanatory efforts found in the NJC’s “Communications Tool” of December 2005. Moreover, even though the immediate supervisor was at fault in his approach to the issue, what may have been his intuitive perception of the problem is, in a sense, correct. Surely, as a matter of sound policy, the Directive does not fully compensate employees for travel to a temporary workplace within the headquarters area which is closer to the employee’s residence than their permanent workplace. In fact, the Directive’s wording does not allow this, as one might sensibly expect.

23 There is confusion caused by the agreement between Mr. Gingras and Ms. Deryckx to put pending disputes over the Directive in abeyance while awaiting the results of the bargaining agent’s request to the NJC for an interpretive ruling. There is at least a latent, and perhaps even a patent, ambiguity in Mr. Gingras’ request. While Mr. Gingras sought clarification of the Directive paragraph which enunciates “the lesser rule,” he actually misidentified it. More importantly, his example at the end of his letter of request does not identify the situation of travel to a temporary workplace within the headquarters area to which “the lesser rule” applies and to which the grievors’ circumstances relate. One does not know what fact pattern Ms. Deryckx may have had in mind when she agreed in the email exchange to put cases on hold while an interpretation was sought, but the PIPSC has certainly not demonstrated on the required balance of probabilities that her agreement covered the grievors’ circumstances. Indeed, there was no evidence that Mr. Gingras was aware of the grievors’ claims, but it is known that his request for an interpretation of the Directive on December 21, 2004 was made three days before the grievors’ supervisor issued his partial allowance of the grievors’ claims at the first level. Mr. Gingras presumably could not have had that result in mind as a foundation for his request. There was no expert evidence of such capacity for prescience on his part, though it is possible that he may be so gifted.

24 The upshot of the evidence as to the Deryckx-Gingras agreement on the request for an NJC interpretation as a precedent in subsequent cases is that it cannot bear the freight which the bargaining agent wishes to place on it. While the two key paragraphs of Mr. Butler’s interpretation letter are somewhat difficult to interpret in the various contexts to which they may apply, they certainly do not explicitly revoke the wording of the Directive which applies to the grievors’ situation - travel to a temporary workplace within the headquarters area. Nor is the wording of Mr. Gingras’ request sufficiently precise to enable the conclusion that this is what Mr. Butler’s reply must have contemplated. Nor did the bargaining agent argue that the exchange between Ms. Deryckx and Mr. Gingras constituted some sort of estoppel - indeed, on the facts such an argument would not fly.

25 Therefore, to resolve this case, one must simply apply the Directive’s plain wording, which is part of the collective agreement. The poultry abattoir to which the grievors were assigned from time to time was 11.5 km from their permanent workplace and thus well inside the 16 km radius for the headquarters area. The parties agreed the grievors’ assignments to that temporary location were for periods of less than 30 consecutive days under section 1.9.1 of the Directive. It is also agreed that the rules in Module 1 of the Directive apply in that the grievors were “… away from the workplace on government business travel within the Headquarters Area without an overnight stay”, even though the work sometimes involved night shifts. It will be recalled that the “lesser rule” is found in section 3.1.11 of the Directive, the two key paragraphs of which read:

When authorized travel or overtime causes a disruption in the employee’s regular commuting pattern, the employee shall be reimbursed additional transportation costs incurred between the residence and the workplace.

When conditions under workplace change are not met, transportation shall be provided to the temporary workplace or the kilometric rate paid for the distance between the home and the temporary workplace, or between the permanent workplace and the temporary workplace, whichever is less.

The 30-day notice conditions or assignment for more than 30 consecutive days from Travel Directive section 1.9 were not met, so the second paragraph containing the lesser rule applies. Applying the lesser rule on the facts means that the grievors are entitled to pay for the 11.5 km between the permanent workplace and the temporary workplace since it is less than the 31 km (more or less) from the grievors’ respective homes to the temporary workplace. Of course, as the parties agree, “travel” in this context means “round trip travel,” in contradistinction to the supervisor’s erroneous first level analysis.

26 In the final analysis, the employer’s submissions are accepted. However, the grievances are successful to the extent that the first level analysis by the supervisor is hereby overturned since the grievors are entitled to compensation under the “lesser rule” for the travel claimed in each case, but on a round trip basis.

27 The parties are in agreement that Dr. Allain is owed $567.18 in addition to the partial reimbursement she received under the previous erroneous calculations. On the same basis, Dr. Fraser-Layes is owed $1248.79.

28 The parties agree that, unfortunately, under the Public Service Staff Relations Act, no interest payments can be ordered against the Crown.

29 For all of the above reasons, I make the following order:

Order

30 The grievances are allowed in part. The grievors are to be compensated under the “lesser rule”, but on a round trip basis.

31 The employer shall pay Dr. Allain a sum of $567.18, and Dr. Fraser-Layes a sum of $1248.79.

April 24, 2009.

Bruce P. Archibald, Q.C.,
adjudicator