FPSLREB Decisions

REASONS FOR DECISION

I. Group grievance referred to adjudication

1        The Public Service Alliance of Canada (“the bargaining agent”) filed a group grievance (Exhibit 5) on behalf of 17 of its members (“the grievors”) employed at the Service Canada offices of Human Resources and Skills Development Canada
(“the employer”), as it was known at the time of the grievance, in Winnipeg, Manitoba. The grievance alleged that the employer failed its duty to reimburse the grievors for the costs incurred for parking their private vehicles (POVs) on the days they were required for government business.

2        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

3        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

II. Summary of the evidence

4        The parties submitted as Exhibit 1 an agreed statement of facts, which I have reproduced:

The Treasury Board (Employment and Social Development Canada) (the “Employer”), and the Public Service Alliance of Canada (the “Bargaining Agent”) agree, for the purposes of this adjudication:

1. that the facts set forth herein are not in dispute and are admitted as proven as if those facts had been established in evidence, subject to their relevance to the issues and to their weight being determined by the Adjudicator;
2. that the documents attached as exhibits hereto are admitted as proven, subject to their relevance to the issues herein and to their weight being determined by the Adjudicator;
3. that each exhibit hereto is a true copy of a document, the original of which was printed, written, signed or executed as it purports to have been, and which was sent and received, as the case may be, by the persons indicated thereon or therein, on or about the dates indicated;

Introduction

This matter concerns a group grievance filed by Kim Allard et al. in respect of provisions of the National Joint Counsel [sic] (“NJC”) Travel Directive. The grievors are, or were at the relevant time, classified at the PM-01 or PM-02 level, represented by the Bargaining Agent, and subject to the Program and Administration Group Collective Agreement (Expiry June 20, 2011).

Facts

1. At all material times, the grievors were employed as Integrity Services Officers or Integrity Services Investigators with Service Canada (Employment and Social Development Canada, then Human Resources and Skills Development Canada).
2. The grievors’ primary responsibility is to prevent, detect, and deter fraud against departmental programs by conducting education and investigation activities.
3. The grievors are required to travel as part of their work duties. Such travel is primarily “within headquarters area” as defined by the NJC Travel Directive.
4. Most work related travel conducted by the grievors is by personal motor vehicle. However, the grievors are not required to have access to a personal motor vehicle at the workplace or to use their personal motor vehicle to travel.
5. Prior to 2009, the grievors’ work unit was located at 280 Broadway Avenue in Winnipeg, Manitoba. At that time, the Employer provided free parking spaces to Integrity Services Investigators.
6. In or about 2009, the Employer conducted a government wide review on parking. The grievors were informed that the Employer would no longer provide paid parking and that work related parking expenses would be reimbursed within the parameters of the NJC Travel Directive.
7. Shortly thereafter, in or about 2009, the grievors [sic] work unit relocated to 266 Graham Avenue, Winnipeg, Manitoba. No Employer paid parking was provided at the 266 Graham location.
8. Until May 2010, the Employer reimbursed parking expenses on the following basis:
   1. Upon provision of receipts for daily rate parking on days on which the employees also claimed work related travel; or
   2. On a pro rata basis for monthly parking fees based on the number of days on which employees claimed work related travel.
9. In June 2010, the Employer advised employees that pro rata reimbursement of monthly parking fees would no longer be reimbursed and employees would only be reimbursed based on the submission of a daily rate parking receipt.

Appendices

1. National Joint Council Travel Directive, effective April 1, 2008 (archived) [Exhibit 2].
2. Integrity Services Investigator (PM-02) Work Description [Exhibit 3].

5        Sean Kiely, one of the grievors, testified on behalf of the group of grievors. He is a senior integrity services officer. He investigates major fraud in the areas of employment insurance, pensions, temporary foreign workers, and student loans. At the time of the grievance, he was an integrity services investigator assigned to the employment insurance program. His work requires him to travel in the course of his investigations of employment insurance claimants.

6        When Mr. Kiely started his career as an investigator in 2008, the employer had a fleet of vehicles available to the investigators, who were located at 280 Broadway in Winnipeg. When the employer moved its offices to 266 Graham Avenue in Winnipeg, fleet vehicles were no longer available. Mr. Kiely could not recall if fleet vehicles remained available at 280 Broadway after his office moved. He did confirm on
cross-examination that fleet vehicles were available for a limited time while his office was located at 266 Graham Avenue.

7        At that location, paid monthly parking was available to employees. For the investigators who paid for their parking on a monthly basis, the employer reimbursed them on a prorated basis for those days that they used their POVs for employer business. Investigators who did not have monthly parking were reimbursed their actual cost of daily parking if they submitted their receipts. This arrangement was confirmed in an email from Mr. Kiely’s team leader (Exhibit 6).

8        The employer stopped prorating the cost of parking once it relocated its offices to 280 Broadway; reimbursing daily parking continued. This arrangement continues to this day even at the 111 Lombard Street location where the employer now has its offices. Since it no longer prorates the cost of monthly parking, Mr. Kiely testified that he brings his POV only on those days it is required for work. He is then reimbursed for the cost of daily parking, which is approximately $11 to $14 per day (the prorated cost of monthly parking was approximately $7 to $10 per day).

9        Mr. Kiely testified that he uses his POV when he is required to travel to interview claimants or other clients. The investigators have the option to use public transport or taxis to travel to interview locations, but according to Mr. Kiely, most investigators use their POVs. Another option is to rent a car, which is very costly; it is approximately $20 to $60 per day plus the cost of parking. The use of public transport or taxis is not fiscally responsible, according to Mr. Kiely.

10        The use of public transport and taxies poses safety concerns if an investigator cannot escape quickly from an interview that has gone bad. Interviews are conducted at many locations, including at claimants’ homes and on employer premises. When an investigator walks into a meeting during the course of an investigation, he or she does not know what he or she will face. In addition, during the course of an investigation, the investigator may end up with a number of documents that must be transported back to his or her office, which is not possible. And it is not reasonable to ask a cab driver to wait while an interview is being conducted, according to Mr. Kiely. Furthermore, according to him, the employer does not promote the use of these alternate methods of transportation. Employees are encouraged to use their POVs. If the cost of a car rental is less than the cost of the POV, the employee is expected to rent a car.

11        Another of the grievors, Kim Allard, testified on behalf of the group of grievors. She started working as an investigator in 2007 at the employer’s office at 280 Broadway. At that time, her only option was to use her POV for her work-related travel, and she had an assigned and paid parking spot at 280 Broadway. She was not aware of the existence of fleet vehicles, which she could have used. The only fleet vehicles she was aware of belonged to the region and not to her office. At one point, while at 266 Graham Avenue, she tried to reserve a fleet vehicle and was told that none was available for her for two weeks.

12        Paid parking for the 266 Graham Avenue location was at the Delta Hotel. According to Ms. Allard, the cost of parking there was $168.50 per month. The employer paid her on a prorated basis for those days on which she used her POV for client calls. She made expense claims for these days and was reimbursed at the rate of $7.00 per day. This continued until June 25, 2010, when her prorated parking claim was denied. She had never been notified either in writing or verbally that there had been a change and that she was now responsible for the entire cost of monthly parking. Currently, only daily parking is reimbursed.

13        Ms. Allard testified that she has always had monthly paid parking and that she has kept it, despite the change. This did not change when the employer stopped reimbursing her on a prorated basis. She likes the flexibility to set her own schedule.

14        Ms. Allard is required to conduct interviews mostly at Service Canada Centres. She uses her POV for that, although she testified that other options are available to her, such as rental cars and taxis, for which she requires preapproval. In her opinion, neither of these options is viable, and in any event, they are not encouraged by management. Other public transport is not a viable option either, since documents must be carried to and from each interview. There may be a large volume of documents, depending on the nature of the case.

15        Ms. Allard attends 12 to 14 interviews per month, for which she is reimbursed only for her mileage. The additional cost of wear and tear on her POV is not reimbursed. The cost of her parking averages between $11 and $14 per day for which she is reimbursed as well.

16        Kelly Minucci is a retired union representative who was employed by the bargaining agent between 2002 and 2016. In 2010, the grievors approached her because claims to prorate the reimbursement of parking fees were being denied by the employer’s Chief Finance Officer Branch, even though they had been approved by the employees’ manager. They were concerned not only because they were no longer being reimbursed their expenses but also because due to the performance management quota implemented by the employer, time they spent looking for a parking spot could not be excluded from what was considered productive time during which quotas were to be met. The inefficiency and costs related to using a bus or taxi were of concern to them as well. Finally, they were concerned for their safety if they did not use their POVs.

17        According to Ms. Minucci, In Manitoba, there is a documented history of integrity officers being attacked in a claimant’s home, of a claimant leaping over a desk to attack an officer, and of claimants uttering death threats against officers. The employees have to be able to make an easy exit from such situations, which is not possible when using public transportation or taxis.

18        Ms. Minucci had no direct knowledge of what vehicles were available to integrity officers in other offices, but according to her evidence, the grievors do not have access to fleet vehicles, unlike those working in offices in Edmonton and Calgary, Alberta; in Brandon, Manitoba; in Regina and Saskatoon, Saskatchewan; and in British Columbia, where fleet vehicles are available. According to Ms. Minucci, there was no one in the Winnipeg office to manage a vehicle fleet. Her testimony was based on what the grievors had told her.

19        The employer chose to call no witnesses.

III. Summary of the arguments

A. For the grievors

20        By taking away fleet vehicles and by offering unsafe and unpractical alternatives, the employer has forced the grievors to use their POVs to carry out their duties. As a result, it has denied them the option to use other means of transportation, such as carpooling, to report to their place of work.

21        According to section 3.1.11(c) of the National Joint Council (NJC) “Travel Directive”, parking charges are normally not payable at the employee’s place of work. The Travel Directive does not distinguish between those who pay for parking monthly and those who incur daily parking charges. The grievors are asking for compensation only for those days on which they are required to travel for business.

22        The grievors described their work as reactive; they may have to leave the office at any time, without notice, which requires them to have a vehicle available. The options provided by the employer for transportation are less than economical. The daily parking rates are greater than the prorated cost of monthly parking. The lower cost is consistent with the directions in section 3.1.11 of the Travel Directive, which require the choice of transportation to be based on practicality and cost to the employer.

23        The options put forward by the employer are more expensive that the prorated cost of parking. Daily parking does not come with in-out privileges. The employees are required to waste time driving to find a parking space. The use of taxis poses safety problems because the types of fraud the grievors investigate could result in criminal charges being laid against claimants. The use of public transportation requires waiting and compromises the security of the documents the grievors carry.

24        The grievors travel primarily within their headquarters region. The use of rental cars is more expensive and time-intensive for the employer than reimbursing the prorated cost of parking the grievors’ POVs. The employer would benefit financially by getting rid of the costs of operating fleet vehicles. These costs would be put onto the employees, who would receive reimbursement only for mileage, which would not cover the costs of POV maintenance and insurance.

25        The employer does not encourage employees to use taxis or rental vehicles, which suggests to employees that they are expected to use their POVs for conducting its business. It forces the employees to bring their POVs each day, which requires them to find parking and incur an additional expense. Therefore, they state that the employer must pay the prorated cost of parking, reinstate the vehicle fleet, or pay for a taxi to wait while they conduct their business. Under their job description, the grievors are not required to have a driver’s license or a POV. However, it is an unwritten expectation of the employer that they must be able to drive and must have regular access to a POV.

26        The Travel Directive is not ambiguous. It states that employees are to be reimbursed the actual cost of travel when fulfilling their duties. The actual cost in this case is the prorated cost of monthly parking.

B. For the employer

27        The intention of the Travel Directive is to reimburse legitimate out-of-pocket expenses incurred by employees in the course of their employment. The only thing in dispute is the interpretation of the directive. There was no evidence that the grievors were ever denied the option of taking a taxi or a bus or renting a car. These options are available to them. They are not obligated to have their POVs available at work every day. Monthly parking is a matter of choice and personal convenience; it is not a legitimate work-related expense.

28        Under the Travel Directive, clear language identifies what is reimbursable. Only what is clearly identified as reimbursable will be reimbursed. The language in section 3.1.11 of the Travel Directive is ambiguous at best; the NJC reached an impasse because it could not agree on the interpretation of the section. The purpose and scope of the Travel Directive is to ensure that employees receive payment for reasonable out-of-pocket expenses incurred in the course of their job duties. The Travel Directive is not a source of income.

29        On those days on which the grievors bring their cars to work and use them in the course of their duties, the cost of parking is reimbursed. There is no additional cost to the grievors if paid parking is part of their normal commuting pattern.

30        The authority of an adjudicator is limited to and by the express terms of the collective agreement. An adjudicator can only interpret and apply the collective agreement, and in this grievance, the Travel Directive. An adjudicator cannot modify the collective agreement or the Travel Directive, which forms part of the collective agreement, when the terms are clear; nor can an adjudicator created new terms
(see Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at para. 50). In addition, an adjudicator is prohibited from doing those things under s. 229 of the Act.

31        When interpreting the Travel Directive, the adjudicator must determine the parties’ intent based on the ordinary meaning of the words used. If a monetary benefit is intended, it must be conferred in clear language within the collective agreement or the Travel Directive. If there has been a breach of the collective agreement, the bargaining agent must prove it. The burden of proof rests on it to establish a contravention of the collective agreement. When it asserts a right to a monetary benefit, it carries the burden of demonstrating that there exists precise language in the collective agreement that imposes an obligation on the employer to pay the benefit in question (see Allen v. National Research Council of Canada, 2016 PSLREB 76 at
para. 180).

32        If a practice existed in the employer’s Winnipeg office to reimburse the grievors for the cost of their monthly parking on a prorated basis, it was not a widespread practice known to the Treasury Board. The email (Exhibit 6) from the Team Leader to the grievors (among others in their office) does not constitute a practice spread across the public service. To be enforceable, it cannot apply only within the grievors’ workplace, and it must have been known to the Treasury Board (see Chafe,at para. 71). When the employer’s Chief Finance Officer Branch discovered the practice, it was stopped.

33        If there is no clear language to support paying a benefit, the onus is on the bargaining agent. An adjudicator must interpret the collective agreement so as to avoid an absurdity. The fact that local managers might have for whatever reason interpreted the Travel Directive in a certain way does not amount to a representation by the Treasury Board that it was correct (see Golden Giant Mine v. United Steelworkers of America, Local 9364, [2004] O.L.A.A. No. 600 (QL) at para. 19; Taticek v. Canada (Border Services Agency), 2014 FC 281 at para. 59, and Chafe, at para. 76).

34        Expense claims must be approved by someone in authority (see Hamilton
v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 91 at para. 30), and that authority is under ss. 32 and 34 of the Financial Administration Act (R.S.C. 1985, c. F-11; FAA). There is no evidence that the team leader who produced the email in Exhibit 6 had any such authority.

35        The grievors have established patterns of commuting to work, but there is no evidence of out-of-pocket expenses. There is also no evidence that a receipt for parking expenses properly submitted has been refused. The convenience of having their POVs available to them on a daily basis does not create an obligation on the employer to share the cost of monthly parking. The economics of the employer’s decision is the responsibility of the employer. It is better able to determine when to provide fleet vehicles. There is no evidence that any of the grievors were out of pocket because of work-related travel.

36        The safety issues raised by the grievors in their evidence are a red herring. They speak to the means of transportation, not whether the grievors are entitled to reimbursement for parking. They have control over their workloads, which allows them to plan for alternate means of transportation. They choose to use their POVs instead. A POV and a driver’s licence are not requirements of their positions. The employer has demonstrated no clear intent to reimburse the grievors on a prorated basis for the monthly costs of their parking. They seek reimbursement for the cost of monthly parking, which is not provided to employees elsewhere in the public service. The onus was on them to prove that the employer intended to reimburse them for monthly parking. They have not done so, and their grievance must be dismissed.

IV. Reasons

37        The grievance is dismissed. By the admission of the grievors’ representative, there is no ambiguity in the Travel Directive. My role as an adjudicator has been clearly spelled out as set out in the employer’s argument. It is not to rewrite the collective agreement or the Travel Directive. It is to interpret what is before me (see Taticek and Chafe).

38        The cost of paid monthly parking has long been a hot topic with public servants and their bargaining agents. There are times when employees may use their POVs in the course of performing their duties. When doing so, they are entitled under the Travel Directive to claim a reimbursement of their mileage and other expenses for which they are out of pocket, such as parking and tolls (see the Travel Directive, section 3.1.11). To claim reimbursement for these out-of-pocket expenses, the employees are required to submit receipts. According to Mr. Kiely’s evidence, when he submits his receipts for daily parking, he is reimbursed.

39        Mr. Kiely also testified that since the employer stopped reimbursing him on a prorated basis for the cost of his monthly parking, he has altered his commuting patterns and has found less-expensive parking elsewhere. On the other hand, Ms. Allard testified that she secured parking at her work location, which I have no doubt was based on her personal preferences rather than on any obligation of her employment.

40        There is no evidence before me that anyone at the Treasury Board or with authority under the FAA approved the cost sharing of monthly parking at the Winnipeg Integrity Services offices. Quite the contrary; the evidence shows that once it became known that it was happening, the people in authority put an end to it, which gave rise to this grievance.

41        To be successful, the grievors had to prove on the balance of probabilities that their interpretation of the Travel Directive is preferred. Nowhere do I find in the plain and ordinary meaning of the Travel Directive or the collective agreement that the employer has agreed to cost-share monthly parking fees for employees who use their POVs in the course of their duties.  The employer is required to reimburse the employees for the cost of parking their POV when used in the course of their duties. How this is done clearly falls within the meaning of management rights and the employer’s rights under the FAA.

42        In addition, I can find nothing that indicates that the grievors should be reimbursed for expenses for which they were not out of pocket. Their representative would have me accept that the actual out-of-pocket expenses for which the grievors seek reimbursement are the costs of monthly parking or at least a prorated portion of this expense. The choice of whether to pay for monthly parking at their work location is a personal choice made by each of the grievors. The employer was in no way a party to that decision; nor did it require any of the grievors to purchase monthly parking at their work location. Therefore, they should bear the cost of the parking, regardless of whether or not, on occasion, when they park at their place of work, they use their POVs for work-related travel. They incur no out-of-pocket expense for parking at work on those days.

43         Other options are available to the grievors if they chose not to use their POVs in the performance of their duties. There is no evidence that a grievor has been denied the right to rent a vehicle; in fact, Mr. Kiely testified that he has in fact done so and that he has been reimbursed. Whether or not the employer provides fleet vehicles to the grievors is not a matter over which I have authority in these circumstances.
If a true safety issue exists, the grievors have the rights afforded them under Part II of the Canada Labour Code (R.S.C. 1985, c. L-2), which, based on the evidence before me, they have not pursued.

44        For all of the above reasons, the Board makes the following order:

V. Order

45        The grievance is dismissed.

January 16, 2018.