FPSLREB Decisions

I. Grievances referred to adjudication

1 This decision is about three grievances filed by three individual grievors. Although the grievances were filed separately, they were heard at the same hearing since they refer to similar or identical facts.

2 Campbell Craig and Leo Blanchard filed their grievances in February 2004, and Gordon Cameron filed his grievance in June 2004. There was no dispute that these grievances fall under the provisions of the Public Service Staff Relations Act (PSSRA), R.S.C. 1985, c. P-35.

3 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 PSSRA.

4 Before filing their grievances, Mr. Craig, Mr. Blanchard and Mr. Cameron (“the grievors”) worked at William Head Institution, a medium-security correctional facility located on Vancouver Island, British Columbia. In September 2002, the Federal Government announced that William Head Institution would transition from a medium-security to a minimum-security institution. The Correctional Service of Canada (CSC) implemented a reverse order of merit (ROM) process to determine who would remain employed and who would be declared surplus. The grievors were declared surplus.

5 Mr. Blanchard was relocated to Ferndale Institution in Mission, B.C., on August 25, 2003.

6 Mr. Craig was also relocated to Ferndale Institution, on May 7, 2003.

7 Mr. Cameron was relocated to Pacific Institution in Abbotsford, B.C., in May 2003.

8 In their relocations from William Head Institution to their new locations, the grievors were covered by the provisions of the National Joint Council Relocation Directive (“the Directive”) (Exhibit E-1, tab 3). What is at issue are costs such as travel expenses, added utility expenses and other such items that each grievor incurred following his move to the new location but before his return to William Head Institution. Each grievor testified about these costs and why they were incurred.

9 In March 2003, Mr. Blanchard asked the Public Service Commission (PSC) to investigate the ROM process. In September 2003, the PSC concluded that his complaint was, in part, founded. The investigation established what would correct the situation, and those employees declared surplus were offered a return to William Head Institution.

10 As a result of the PSC ruling, the grievors returned to William Head Institution. Mr. Craig returned in early May 2004, and Messrs. Blanchard and Cameron returned on June 1, 2004.

11 With respect to the grievors’ return to William Head Institution, each was subject to the provisions of the Directive. There was no dispute with respect to each  grievor’s entitlement and to what each received under the Directive for his return.

12 Each grievor requested corrective action in his grievance. At the hearing, the grievors’ representative amended the requested corrective actions as follows:

Mr. Craig — he no longer sought costs related to “the stress and emotional upheaval of my having to transfer… ” (item number 4)

Mr. Blanchard — he no longer sought costs related to “the stress and emotional upheaval of my having to transfer… ” (item number 3)

Mr. Cameron — he no longer sought costs related to his “spouse’s loss of wages as a result of having to resign her job” and “loss of preapproved mortgage” (items number 1 and 2 in details of grievance).

13 The employer’s position is that the costs still claimed are not covered by the Directive and that they are not reimbursable. Furthermore, the employer submitted that I am without jurisdiction to hear these matters since the Directive was not violated. I stated that I would reserve my decision on that issue.

14 The grievances followed the grievance process. In the bargaining agent’s view, the employer’s failure to reimburse the expenses at issue is a violation of the Directive. Under clause 20.01 of the collective agreement applicable to the parties (Exhibit U-1), disputes involving National Joint Council (NJC) agreements (which include the Directive) are to follow the NJC grievance process

15  Accordingly, the grievances were sent to the NJC for consideration. The NJC is composed of both employer and bargaining agent representatives and was established to deal with a myriad of subjects. The Directive is but one of them.

16 On July 20, 2007, the NJC rendered its decision concerning each grievance (Exhibit U-2). Its decision states in part as follows:

…

The Executive Committee considered and agreed with the Relocation Committee which concluded that the grievors were treated within the intent of the IRP Relocation Directive. Consequently the grievance is denied.

As to the other corrective action requested with respect to the issue of damages arising from reverse order of merit process, the Committee agreed that these issues were not under the NJC’s jurisdiction.

…

17 After receiving the NJC’s decision, the bargaining agent referred the matter to adjudication to the Public Service Staff Relations Board (“the Board”). Several delays occurred due to the unavailability of one side or the other until, ultimately, I heard all three grievances on September 1 and 2, 2010.

II. Summary of the evidence

18 Mr. Blanchard had been working as a correctional officer at William Head Institution for 16 years when the ROM process was invoked, which declared him surplus. He was relocated to Mission in 2003. At that time, his father was dying of cancer. Since Mr. Blanchard’s wife was the only family support, she remained behind. Mr. Blanchard travelled to Victoria, B.C., every weekend to be with his wife and ailing father. Mr. Blanchard is seeking reimbursement for items such as the cost of the ferry that he took every weekend to return to Victoria, car expenses, extra utility costs and the travel time that he would not have had to use had he not been wrongly transferred.

19 Mr. Blanchard acknowledged that he was not travelling on government business with respect to the items in his claim and that he has no receipts, as they were lost in a fire.

20 Mr. Craig had been a correctional officer for approximately 30 years before the ROM process took place at William Head Institution. He had a wife and two high-school-aged children in 2003 when he was declared surplus and transferred to Mission. For personal and financial reasons, his family chose not to move with him. He also travelled to Victoria every weekend to be with his family and to attend to his ill mother. Mr. Craig seeks reimbursement for the cost of the ferry to return to Victoria, the cost of utilities, extra vehicle expenses and other related items. All his receipts were lost in a house fire in 2009 (Exhibit U-7).

21 Mr. Cameron had been a correctional officer for 13 years when the ROM process transferred him to Abbotsford. His family moved with him but, in so doing, his wife had to relinquish her job, and she was not able to find a new job in Abbottsford. Mr. Cameron and his family returned to Victoria at least once per month for personal family-related reasons and incurred ferry costs in doing so. His grievance is about those additional costs, which he incurred after transferring to Abbotsford. He did not retain any receipts.

22 Janice Pelletier testified for the employer and stated that she was employed with the CSC and that she worked on the relocation files for those correctional officers who were relocated from William Head Institution to the mainland and back under the ROM process. She testified that nothing was contested about the two relocations made by the grievors, but what was contested were expenses incurred between the relocations. The claims made in each grievance resulted from personal choices that the grievors made during a time between the two relocations. The Directive does not cover those expenses.

III. Summary of the arguments

A. For the grievors

23 The Directive is part of the collective agreement, and the grievors exhausted section 14.1.5 of the NJC By-Laws before referring the matter to adjudication under section 14.1.7 of the NJC By-Laws. The adjudicator may substitute his decision for that of the NJC.

24 Each grievance refers to expenses incurred between the two relocations. The NJC decision dealt with the issue of damages resulting from the ROM process and stated that “… these issues were not under the NJC’s jurisdiction.” That decision was incorrect.

25 Section 2.2.1.1 of the Directive states the following:

It is the responsibility of the employer to reimburse the employee’s actual and reasonable relocation expenses … within the limits of this Directive.

26 Section 2.10.1 of the Directive states the following:

The employer … is authorized to reimburse an employee for expenses incurred when a relocation is cancelled by the employer for work-related reasons that are beyond the employee’s control …

27 In each grievor’s case, the relocation was cancelled. Section 2.10.3.2 of the Directive states the following:

The employer will reimburse an employee for a wide range of incidental expenses related to a relocation. The expenses must be directly attributable to the move, must be clearly reasonable and justifiable, and must not upgrade the financial position of the employee.

28 Those criteria have been met in all three grievances.

29 The second portion of the NJC’s reply stated that the issue of damages was not under its jurisdiction. That issue related to the stress and emotional damage that the grievors suffered. The grievors agreed, and consequently, each grievance was amended to delete the request for damages.

B. For the employer

30 The PSC had the jurisdiction to investigate the ROM process and to take corrective action, and it did. If the grievors were not satisfied, they could have filed for judicial review, as was discussed in Fortin v. Canada (Attorney General), 2003 FCA 376.

31 The grievors stated that the damages for which they request reimbursement  were caused by a flawed ROM process. However, nothing in section 92 of the PSSRA allows an adjudicator to hear a grievance about a flawed ROM process.

32 Clause 41.03 of the collective agreement refers to the Directive. There is no question that the Directive forms part of the collective agreement and that the PSSRA provides an adjudicator jurisdiction over collective agreement provisions. Therefore, the adjudicator has jurisdiction under the Directive, but neither the first nor the second relocation is in dispute in these grievances. At issue is the time between the relocations.

33 Once a move is completed, the Directive ceases to apply. When the grievors started working on the mainland, the Directive no longer applied. All expenses related to the grievors’ personal choices occurred after that move. The period referred to by the grievors — the “in-between” period — is not covered by the Directive.

34 Section 2.10.1 of the Directive, which the bargaining agent stated applies, deals with the cancellation of a relocation, which did not occur in this case. The first relocation was completed. The second relocation was completed. No expenses related to either relocation are in dispute.

35 As far as the expenses are concerned, no documents or receipts were submitted for proof. That causes a major problem for the employer, as the grievors cannot be cross-examined about the expenses. The fires, which allegedly destroyed receipts, took place in 2009, but the grievances were filed in 2004. The receipts could have been produced then.

36 The employer argued that the grieved expenses are not part of a relocation as seen by the definition of “relocation” in the Directive. That definition, which is found in Appendix C of the Directive, states as follows:

Relocation – The authorized move of an employee from one place of duty to another or the authorized move of an employee from the employee’s place of residence to the employee’s first place of duty upon appointment to a position in the Public Service.

37 The employer’s position is that, since the grievors’ relocations to the mainland and back are not contested and the in-between periods were not relocations, then the Directive was applied equitably, and there is no jurisdiction to award anything.

C. Reply

38 The ROM process was cancelled, so the relocation had to be as well. Section 2.10.3.2 of the Directive applies, and jurisdiction should be taken.

IV. Reasons

39 The parties agreed that the provisions of the PSSRA apply in this case, as the grievances were filed in 2004.

40 Section 92 of the PSSRA states in part the following:

92.(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

…

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

41 The grievors filed their grievances in 2004 and claimed that the Directive was violated. There is no dispute that the Directive formed part of the collective agreement and that article 41 of that collective agreement referred to the Directive (Exhibit U-1).

42 Again, there is no dispute that the parties exhausted the internal grievance process and that they referred the grievances to the NJC pursuant to its By-Laws (Exhibit U-3).

43 On July 20, 2007, the NJC rendered its decision with respect to the three grievances (Exhibit U-2).

44 Once the NJC rejected their grievances, the grievors referred them to the Board for final determination. This decision is about those grievances.

45 The issue in this case, as I see it, is whether the matters grieved fall under or outside the Directive. According to the employer, the issue is one of jurisdiction. It argues that because the Directive does not cover the situation at hand, I am without jurisdiction. Regardless of how the issue is characterized, I am in agreement with the employer that I must first decide whether or not clause 2.10.1 of the Directive applies to the grievors. I have determined that it does not. However one chooses to characterize the outcome which flows from this finding, the result is the same in that the grievances cannot succeed.

46 There is no disagreement between the parties on the facts of this case. In 2002, all three grievors were employed at William Head Institution, which is on Vancouver Island, when the federal solicitor general announced that that institution would change from a medium-security to a minimum-security facility. The CSC initiated a ROM process to determine the correctional officers that would remain employed at William Head Institution and those that would be relocated elsewhere. All three grievors were relocated and Mr. Blanchard appealed this decision to the PSC. The appeal was upheld, in part.

47 By the time the PSC rendered its decision on the ROM process, all three grievors had been relocated to their respective new locations.

48 Relocating each grievor from William Head Institution placed each one under the provisions of the Directive

49 Following the decision of the PSC’s investigator, the grievors were relocated back to William Head Institution.

50 Between the times that each grievor was relocated from William Head Institution until each returned, about 9 to 12 months had passed. The grievors had a variety of expenses during that 9- to 12-month period. The grievors seek reimbursement for those expenses.

51 The grievors’ representative argued that the Directive applies, by virtue of section 2.10.1, which states as follows:

The employer, via its Third Party Service Provider, is authorized to reimburse an employee for expenses incurred when a relocation is cancelled by the employer for work-related reasons that are beyond the employee’s control.

52 When the grievors were relocated from William Head Institution, they received the entitlements of the Directive, which are not at issue. Once the move was over and the grievors were in their new workplaces, the Directive, in my view, no longer applied. It is specifically related to the authorized move of an employee.

53 Therefore, it follows that the cancellation of a relocation, referred to in section 2.10.1 of the Directive, would occur when the relocation is in progress. For each of the three grievors, the relocation was completed. The grievors moved to their new locations.

54 The second relocation was the move back to William Head Institution. The expenses related to that relocation are not at issue. That relocation was not cancelled, so section 2.10.1 of the Directive would not apply.

55 There is no doubt in my mind that the three grievors incurred expenses from a flawed ROM process. However, I agree with counsel for the employer that the clause of the Directive advanced by the grievor’s representative does not apply to their situation. Also, I find that there is no other clause in the Directive which would allow me to grant the grievances. Their grievances cannot therefore succeed.

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

V. Order

57 The grievances are dismissed.

October 29, 2010.

Joseph W. Potter,
adjudicator