FPSLREB Decisions
Decision Information
Travel allowance - Relocation allowance - Travel Directive - Relocation Policy - Government business travel - Relocation - grievor was denied reimbursement of meal and incidental expenses under the Travel Directive - employer argued that these expenses were incurred when grievor had been relocated and that Relocation Policy applied, representing reimbursement of a smaller amount - dispute contrasted concepts of "government business travel" and "relocation" - among the factors which led to adjudicator's finding that that case concerned a series of business trips rather than a relocation were the fact that grievor returned home on weekends and the fact that employer had not implemented certain terms and conditions of the Relocation Policy. Grievance allowed.
Decision Content
File: 166-2-26221 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN KADER LAKEB Grievor and TREASURY BOARD (Public Works and Government Services Canada) (formerly Supply and Services Canada)
Employer Before: Marguerite-Marie Galipeau, Board Member For the Grievor: Jean Ouellette, Public Service Alliance of Canada For the Employer: Guy Blouin, counsel Heard at Quebec City, Quebec January 30, May 8-9, 1996.
Decision Page 1 DECISION This decision follows upon the referral to adjudication of a grievance by Mr. Kader Lakeb, who, at the time the grievance was filed, was employed by Supply and Services Canada (Public Works and Government Services) and a member of the Technical Inspection (TI) Group bargaining unit.
In his grievance, Mr. Lakeb is requesting that the Travel Directive (exhibit A-2) be applied to his personal situation, said directive being integrated by section M-37.03(2) into the Master Agreement (exhibit A-1) concluded between Treasury Board and the Public Service Alliance of Canada.
At the commencement of the hearing, the parties indicated they had agreed to delay two other grievances (Board Files 166-2-26501 and 26502) by Mr. Lakeb, pending a decision by the Federal Court of Appeal in the Chopra case (Federal Court of Appeal file A-591-95). They also stated they had agreed to include the evidence produced in respect of the present grievance at any future hearing of the other two grievances.
In this grievance, Mr. Lakeb is requesting reimbursement of the expenses he incurred for meals and incidentals that, in his opinion, are due him pursuant to the Travel Directive (exhibit A-2). According to Mr. Lakeb, these expenses were incurred during government business travel. The sums in question are of the order of $3,000 to $4,000. The employer, for his part, claims that it is actually the Relocation Policy (exhibit E-1), which also forms an integral part (section M-37.03(9)) of the collective agreement, that applies to Mr. Lakeb’s situation. The employer is of the opinion that the travel in question was “extended business travel” and emphasizes that section 5.9.4 of the Travel Directive (exhibit A-2) states that, in the case of stays in excess of four months, the Relocation Policy (exhibit E-1) applies.
The following provisions of the Travel Directive (exhibit A-2) are relevant here: General Collective agreement This directive is deemed to be part of collective agreements between the parties to the National Joint Council, and employees are to be afforded ready access to this directive.
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Decision Page 2 Purpose and scope The purpose of this directive is to ensure consistent and prudent treatment of employees throughout the Public Service who are required to travel. The provisions contained in this directive are mandatory. These provisions provide for the reimbursement of reasonable expenses necessarily incurred while travelling on government business and do not constitute income or other compensation that would open the way for personal gain. Subject to the exceptions provided for in this directive, all travel shall be pre-authorized. The entitlements of the traveller shall be determined in accordance with the provisions of this directive.
Application This directive applies to Public Service employees, exempt staff and other persons travelling on government business, including training. It does not apply to those persons whose travel is governed by other authorities. (First paragraph only)
... Definitions ... Travel status means absence from the traveller’s headquarters area on government business travel, and at a location which, using the most direct road route, is more than 16 kilometres from the traveller’s home. For the purposes of this definition, “home” includes a second residence, including a temporary, seasonal, self-contained family residence, occupied by the traveller and/or dependants immediately prior to the period of the traveller’s temporary duty. (déplacement)
... Incidental expenses includes such items as gratuities (other than those related to meals and taxi use), laundry, dry cleaning, depreciation of luggage and other personal supplies and services, the costs of which can be attributed to a period in travel status, but for which no other reimbursement or allowance is provided under this directive. (faux frais)
... Workplace is the location at or from which an employee ordinarily performs the duties of his or her position and, in the case of an employee whose duties are of an itinerant
Public Service Staff Relations Board
Decision nature, the actual building to which the employee returns to prepare and/or submit reports, etc., and where other administrative matters pertaining employment are conducted. (lieu de travail)
... Government business travel means all travel authorized by the employer, and is used in reference to the circumstances under which the expenses prescribed in this directive may be paid or reimbursed from public funds. (voyage en service commandé)
... Headquarters area means an area surrounding the workplace having a radius of 16 kilometres, centred on the workplace. (zone d’affectation)
PART I Administration
1.1. Authorization 1.1.1 It is the prerogative of the Employer to determine whether, when, where, by whom and by what means travel will be undertaken and to select the mode and class of transportation and the accommodation to be used, subject to the provisions of this directive.
... 1.1.5 All travel, including the mode and class of transportation and type of accommodation, shall be authorized in advance in writing, on the “Travel Authority and Advance” form, completed in detail, signed by both the employer and the traveller, acknowledging acceptance of the terms of travel, which shall be in accordance with all instructions contained in this directive.
PART V Extended periods in travel status
Travel home 5.1 General 5.1.1 An employee who is in travel status that extends through or beyond a weekend is eligible for weekend travel home provisions as long as the conditions of 5.1.4 are met.
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Page 3 to the employee’s
Decision Page 4 5.1.2 Weekend travel home is intended to remove the hardship of absence from home and family and to enable the employee to fulfill obligations relating to the maintenance of a principal residence.
... Other extended periods 5.9 General 5.9.1 There are situations where the employee is required to leave the headquarters area for a number of months to live in another community for reasons of training or work assignments.
5.9.2 When the period of stay at another location or at successive locations is two months or less, the employee will be considered to be in travel status.
5.9.3 When the period of stay at another location or at successive locations is in excess of two months, but less than four months, the employee will be considered to be in extended travel status and appropriate arrangements will be made by the employer for suitable self-contained accommodation obtainable at weekly or monthly rental rates. While the employer has final responsibility for arranging such accommodation, an employee may make these arrangements on behalf of the employer, subject to mutual written agreement. In any case, the employee should be provided with such accommodation shortly after arrival and should not occupy the usual hotel-type room with its more expensive daily rate for more than seven days at each location. The arrangements shall be noted in the employee’s travel file. When this semi-permanent type of accommodation is occupied, the employee shall be reimbursed the accommodation costs incurred and a daily allowance for meals and incidental expenses in an appropriate amount, as prescribed in Appendix C. In such cases, deductions for meals provided in a government-owned, -operated or-arranged facility, or an educational institution shall not exceed the amounts stated in Appendix C.
5.9.4 When the period of stay at another location is in excess of four months within or outside Canada, the short-term relocation provisions of the Relocation policy shall apply.
5.9.5 Notwithstanding the preceding paragraph, when the period of stay at another location will exceed four months, but use of short-term relocation provisions is impractical in the opinion of the employer, or when an initial period of stay
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Decision Page 5 of less than four months is unavoidably extended for program-related reasons beyond four months, the employee may be considered to be in extended travel status. When the period in extended travel status exceeds four months, the arrangements shall be reviewed every two months thereafter by the employer and the justification documented on the employee’s file.
5.9.6 The extended travel allowances are based on reimbursement of costs over and above those incurred for accommodation and housekeeping at the traveller’s principal residence, and reflect the fact that two residences are being maintained. Where persons making arrangements which result in the cancellation of financial obligations are the principal residence and, in effect, move the household to the temporary duty location, the continued payment of costs and allowances cannot be justified.
The following provisions of the Relocation Policy (exhibit E-1) are also relevant:
1. Introduction 1.1 Purpose and scope 1.1.1 *It is the policy of the government that* (a) in any relocation, the aim shall be to relocate the employee in the most efficient fashion, that is, at the most reasonable cost to the public yet having a minimum detrimental effect on the transferred employee and family.
(b) the practices of the employer should, in general, take into consideration the practices of other governments and the private sector.
(c) the relocation provisions which generally apply to moves within Canada shall provide only for the employee’s legitimate expenses, without opening the way for personal gain or for the underwriting of extravagances. Expenses resulting from misinterpretation or mistakes shall not be a basis for reimbursement.
(d) it is the responsibility of the employer to reimburse those actual and reasonable relocation expenses, within the limits of this policy, incurred by an employee, as well as the employee’s spouse and dependants when the relocation is made at the request of the employer.
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Decision Page 6 (e) the employer will grant an employee reasonable time off with pay for the purpose of overseeing the packing, unpacking, loading and unloading household effects. Such authority shall not be unreasonably withheld.
... 1.1.7 For any relocation, the terms and conditions of reimbursement shall be discussed with the person relocating at the time of the authorization to relocate.
... 1.1.10 Once a relocation has been authorized: (a) the employer shall immediately provide the relocating employee with a copy of this chapter and the name and telephone number of the departmental contact who will assist the employee in interpreting the policy;
... (c) every attempt will be made to ensure that the timing of the relocation, and the travelling associated with it, is convenient to both the employer and the employee. The relocation should be planned to minimize disruptions to family life, and to minimize the costs to the employer; to this end, managers shall ensure that employees relocating receive appropriate counselling, and also that employees’ enquiries regarding this policy are answered promptly and accurately.
... 1.2 Application ... 1.2.1 Unless specifically stated otherwise, the relocation provisions shall apply to all relocations within Canada resulting from a transfer or an appointment that originated in the Public Service of Canada as defined in section 11(1) of the Financial Administration Act. These provisions do not apply to members of the Royal Canadian Mounted Police (RCMP) and the Canadian Armed Forces.
...
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Decision Page 7 1.4 Definitions ... Travelling expenses means the transportation and living expenses incurred en route to the new place of duty.
... Place of duty means the location of the official station or headquarters at or from which the employee’s duties are ordinarily performed, or to which an appointee is required to report for duty, and includes any area which, according to local custom, is within commuting distance of the place of duty. The place of duty of employees employed as Ships’ Officers or Ships’ Crews is defined in article 9.5.1 of chapter 370 - Travel.
... New principal residence means a single-family dwelling purchased or rented at the new place of duty which will become the employee’s principal residence following the relocation.
... Relocate or Relocation means 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.
... Principal residence means a single-family dwelling owned or rented by the employee or dependant residing with the employee, which was occupied continuously at the time the relocation at public expense was authorized and which is recorded as the employee’s permanent address on the departmental or agency personnel file. Temporary or seasonal accommodation is excluded by this definition.
... 9.3 Short-term relocations 9.3.1 There are situations when the employee is obliged to leave the employee’s metropolitan community or headquarters area for a number of months, or a few years, to live in another community where the employee has been selected for:
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Decision Page 8 − training; − educational leave in accordance with Treasury Board’s policy (TB 796739, “Conditions Governing Training” Personnel Management Manual (PMM) Volume 4 Chapter 6)
− work assignment (this latter category may be an assignment within or outside the Public Service).
9.3.2 The deputy head should consider all aspects of the employee’s situation, specifically the duration of the stay in the other community, the family situation, and whether the employee is a homeowner or rents accommodation, to determine whether it would be more practical, economical, and less disruptive to the family unit to assist the employee in maintaining a temporary second residence or to authorize a relocation. E.g., a single employee or an employee whose dependants are not of school age, and who rents accommodation, may be easily relocated for a period of one year; an employee with school-age dependants and who owns accommodation may not be a suitable person to relocate for that same period of time. In all cases the options shall be discussed with the individual employee, and consideration given to the employee’s wishes, to the extent that any additional costs incurred are not excessive.
9.3.4 *Short-term residence - living expense assistance* When a relocation is not indicated because:
− the period of duty / training is too short; − a temporary relocation of the family is not practical (e.g. education of dependants);
− or for both reasons, living expense assistance may be authorized as specified in section 3. The employee would be reimbursed for accommodation, meals, utility costs, laundry costs and telephone calls as outlined in articles 3.2 and 3.3.
In addition, the employee may be authorized to return home at public expense every third weekend, as specified in article 7.1.6 of Chapter 370 - Travel. When the employee is at home, the meal allowance shall not be paid.
9.3.5 *Relocation* Where the temporary relocation of an employee or a family is indicated, the regular relocation provisions should apply with the following conditions:
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Decision Page 9 (a) the sale or purchase of a home, and the reimbursement of the associated costs shall not be authorized unless the period at the temporary relocation exceeds three years; for lesser periods, employees who rent their homes for the period of their absence shall be reimbursed the actual and necessary fees charged by property management firms, such as trust companies, for managing rental properties;
(b) employees renting accommodation are eligible for payment of costs related to the disposal and acquisition of rental accommodation as specified in article 4.3. Actual and reasonable costs related to subleases shall also be reimbursed.
(c) when it is more practical to store part or all of the furniture and household effects instead of shipping them to the new place of duty, the employer will pay necessary and reasonable moving and storage charges; or
(d) where, in the opinion of the deputy head, it is clearly not practical to ship an employee’s vehicle to the temporary place of duty, the employee shall be reimbursed storage costs incurred for each motor vehicle in an amount up to $60 per month for commercial storage, or $30 per month for private dead storage, upon evidence of payment, for a maximum of two vehicles.
EVIDENCE The Evidence of the grievor Kader Lakeb The testimony of Kader Lakeb may be summarized as follows. Kader Lakeb began working for Supply and Services Canada (Public Works and Government Services) on February 27, 1992 (exhibits A-7, A-8, A-9). His title was Technical Inspector (TI-6). His immediate supervisor was the Chief of Technical Inspection for the Quebec region, Rosaire Sévigny. Mr. Lakeb’s job involved “the technical supervision and inspection during the construction, conversion, repair, and refit of Government ships”; he “(provided) a complete and direct local contracting services for the repair, refit, and minor conversion of ships and associated equipment;” he “participated in pre contract award activity and administered contracts for new construction, major conversion, repair and refit of Governement
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Decision Page 10 ships;” and “established and maintained liaison and coordination with officers of local Customer Agencies, MIMPC and other branch contractors, local Government and Industrial Agencies and Associations ” (exhibit A-10).
Kader Lakeb’s first contract (exhibit A-8) covers the period from February 17, 1992 to September 22, 1993. As from September 22, 1993, his contract was renewed every two months for two months (exhibits E-2 and E-3). Between February 1992 and February 1993, Kader Lakeb worked on several projects, travelling to Montreal, Les Méchins, Gaspésie, Iberville, and Île-aux-Coudres. The Les Méchins project lasted two or three months; during this time, Kader Lakeb was absent from his workplace from Monday to Friday. On weekends, he went home. His expenses were reimbursed in accordance with the Travel Directive (exhibit A-2). His trips were treated as ordinary business travel. He has nothing further to add regarding this period (i.e.: February 17, 1992 to February 1993).
Before Christmas 1992, Rosaire Sévigny informed Kader Lakeb of a five-week project he was to supervise in Sept-Îles; he also told him he could come home on weekends and that his travel arrangements would be the same as those for Pierre Mayer.
From February 16-17, 1993 to May 20, 1993, Kader Lakeb left his home in Sillery, Quebec every Monday to go to Sept-Îles. He returned home on Fridays. As from June 1, 1993 (exhibit A-11), reimbursement for food and incidental expenses was no longer calculated in accordance with the Travel Directive (exhibit A-2), but rather with the Relocation Policy (exhibit E-1). However, Kader Lakeb continued to make the round trip by air between Quebec City and Sept-Îles every week (exhibit A-12). Up until mid- March 1993, he stayed in a hotel room in Sept-Îles. Subsequently he rented an apartment. He ate lunch and dinner in Sept-Îles with representatives of the Coast Guard and other government departments.
On weekends, upon his return from Sept-Îles, he would meet with Rosaire Sévigny in Ste-Foy, or, if the office was closed, would talk to him by telephone. Sometimes they would meet at a restaurant. If on Friday he was unable to contact Rosaire Sévigny, he would meet him at work the following Monday.
Between May 20, 1993 and June 7, 1993, Kader Lakeb learned that he was considered “temporarily relocated” to Sept-Îles (exhibit A-15). On June 7, 1993, he asked Richard Houde, Purchasing Manager, for details (exhibit A-16). The same day he and other inspectors were called to a meeting on the subject of “temporary Public Service Staff Relations Board
Decision Page 11 relocation.” The inspectors were dissatisfied with the explanations offered, and demanded a copy of the Relocation Policy (exhibit E-1). This was later furnished.
Kader Lakeb emphasizes that he was not given prior notice before being designated as “temporarily relocated,” and feels he was treated in a cavalier manner. In Mr. Lakeb’s opinion, relocation involves a move and a decision to live elsewhere. This was not the case here, he says, and his place of work remained Ste-Foy.
On June 8, 1993, Director Jacques Parent sent Kader Lakeb details on the concept of “short-term relocation” in writing (exhibit E-4).
On July 5, 1993, Kader Lakeb wrote (exhibit A-17) to the Director, Supply and Services Canada, Eastern Quebec Region, to inform him that he could not be considered “relocated” in Sept-Îles, where he was merely in transit. On July 12, 1993, he filed the grievance we are dealing with today. Kader Lakeb’s contract was renewed for two months every two months until January 23, 1994, when his employment ended (exhibit A-18).
Kader Lakeb states that, because of his employer’s decision to consider him temporarily relocated, he received only $15.31 per day instead of $45.00. He also emphasizes that he was allowed to return home to Sillery, Quebec every weekend, and that, upon his return, he had to meet with his supervisor, Rosaire Sévigny, in Ste-Foy.
On December 14, 1993, he was commended (exhibit A-19) by William Jamer, Director, Inspection and Technical Services, on the quality of his work.
During the entire period in question, Kader Lakeb’s family continued to live in their home in Quebec City (Sillery). Kader Lakeb took only his clothing to Sept-Îles every week.
Pierre Mayer The testimony of Pierre Mayer may be summarized as follows. In 1992-1993, Pierre Mayer was a Technical Inspector (TI-6); his job consisted in inspecting dockyard work performed for the Department of Supply and Services. Just like Kader Lakeb, his immediate superior was Rosaire Sévigny.
During the nine years that he was employed by Supply and Services, Pierre Mayer often worked outside Quebec supervising contracts of varying terms (e.g.:
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Decision Page 12 9 months, 1 year). He had to travel to the dockyards in question and live nearby. His family did not accompany him. For a year, in 1992, he had to live in New Brunswick.
At this stage of Pierre Mayer’s testimony, the employer’s counsel admitted that, prior to April 1993, the employer’s practice was not to use section 5.9.4 of the Short- Term Relocation Directive, but rather the provisions governing regular travel status contained in the Travel Directive (exhibit A-2).
On June 7, 1993, Pierre Mayer was called to a meeting by the Director, Jacques Parent. (Kader Lakeb mentions this meeting in his testimony.) At the meeting, the inspectors were informed that, in cases involving travel lasting over three months, the provisions governing short-term relocation (exhibit E-1) would be used. Following the meeting, the inspectors asked for details in writing (exhibits A-5 and A-6).
Rosaire Sévigny The testimony of Rosaire Sévigny may be summarized as follows. Mr. Sévigny works for the Department of Public Works and Government Services, and has been employed by the federal public service for 25 years. In 1992- 1993, he occupied the position of Chief of Technical Inspection, Quebec Region. In this capacity he supervised a team of technical inspectors specializing in shipbuilding; Kader Lakeb and Pierre Mayer were part of that team.
Rosaire Sévigny participated in the decision to hire Kader Lakeb. When the latter was engaged in February 1992, three major projects were in the offing. Kader Lakeb was assigned to the one in Sept-Îles.
Inspectors’ workplaces vary: they may consist of a dockyard, machine shop, or manufacturing plant. Inspectors work on site.
In order to avoid having inspectors constantly “at large,” Rosaire Sévigny rotated his staff: an inspector who had worked on a large project away from the office was then brought back to work on a smaller project closer to home.
Terms of travel (allowances, meals) were in keeping with those set forth in the Travel Directive (exhibit A-2). On weekends, inspectors returned home. Rosaire Sévigny never “relocated” an inspector, regardless of the length of the project.
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Decision Page 13 At the time Kader Lakeb left for Sept-Îles, Rosaire Sévigny expected the project to last 15 months. There was no real discussion of terms of travel between Rosaire Sévigny and Kader Lakeb. It was understood that the usual conditions would apply.
Project supervision procedures were as follows: Kader Lakeb would leave at the beginning of the week, or somewhat later, and come home by airplane on the weekend. Rosaire Sévigny and Kader Lakeb were in touch frequently by telephone or in person, at the Ste-Foy office.
Kader Lakeb was the project’s key employee in Sept-Îles. He coordinated all project stages and activities involving government participation; met with specialists and took them on tours of the site; determined the scope of the work to be performed; and discussed costs, all this being in addition to his regular workload.
To properly perform his duties, he had to accompany visitors at mealtimes. Clients such as the Coast Guard and Transport Canada representatives would visit the sites in teams of four or six. These electrical and mechanical specialists all did business with Kader Lakeb. The latter also had to meet with the contractor’s agents, managers from his own department, and auditors from Ottawa who came to Sept-Îles. All this meant that Kader Lakeb often had to arrange lunch and dinner meetings in order to accommodate these people. When Rosaire Sévigny went to Sept-Îles, he and Mr. Lakeb would also discuss the work at mealtimes, in restaurants. Rosaire Sévigny signed travel authorizations (exhibit A-11) for short periods.
Toward the beginning of April 1993, Richard Houde, the Purchasing Manager, informed Rosaire Sévigny that terms of travel would have to be changed. The latter protested, telling Richard Houde that the new conditions would force employees to put themselves out of pocket in order to work for the government.
Rosaire Sévigny and Richard Houde continued to approve Kader Lakeb’s expense accounts, which were calculated in accordance with the rates specified in the Travel Directive (although, eventually, he was not paid in accordance with this directive). Rosaire Sévigny told Richard Houde to put in writing that Kader Lakeb had been “relocated”.
On May 20, 1993 (exhibit A-15), Richard Houde wrote to Rosaire Sévigny saying that, as from the same day, Kader Lakeb was to be considered temporarily relocated. Furthermore, he was no longer authorized to work overtime.
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Decision Page 14 On June 7, 1993, Rosaire Sévigny attended the meeting on changes to terms of travel and temporary relocation. The tone of the meeting was not one of discussion; rather, the inspectors were merely informed of the changes. As from that day, Rosaire Sévigny was no longer consulted when employment contracts were renewed. Rosaire Sévigny shares Kader Lakeb’s point of view as expressed in the two letters to his superiors (exhibits A-16 and A-17).
According to Mr. Sévigny, the quality of Kader Lakeb’s work did not change after the conditions for travel to Sept-Îles had been amended.
Furthermore, Richard Houde “had a fit” every time Mr. Lakeb’s name was mentioned.
On Monday, September 20, 1993 (Kader Lakeb’s first contract ended September 22, 1993), Richard Houde told Rosaire Sévigny that he did not feel Kader Lakeb’s contract should be renewed. He asked Mr. Sévigny to sign a letter saying that Mr. Lakeb was no longer part of his staff. According to Richard Houde, this was because Kader Lakeb had resigned. Rosaire Sévigny refused to sign the letter and asked to see the resignation. Richard Houde showed him a letter to Kader Lakeb containing an offer of renewal based on the new relocation conditions. Kader Lakeb had sent back the document unsigned. Subsequently, Richard Houde asked the personnel office to confirm Mr. Lakeb’s standing, and was told the latter had returned a positive reply. As a result, the contract was renewed.
On September 20, 1993, however, believing that Kader Lakeb would no longer be an employee as from September 22, 1993, Richard Houde asked Rosaire Sévigny to offer the other inspectors the same conditions for travel to Sept-Îles as had been imposed on Kader Lakeb. Mr. Sévigny did so, and the inspectors rejected the offer. Richard Houde then told Rosaire Sévigny to offer them the same conditions as those specified in the Travel Directive (exhibit A-2). The inspectors replied that they would accept, provided the same offer was made to Kader Lakeb. Rosaire Sévigny passed on the message to Richard Houde, who replied: “no way.”
Rosaire Sévigny, Pierre Fraser and Pierre Mayer signed a statement accompanied by an addendum (exhibits A-24 and A-25) in this regard:
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Decision Page 15 (Exhibit A-24) THE “ARUN” SHIP PROJECT, SEPT-ÎLES The management of Government Services Canada has proposed that we travel to Sept-Îles as on-site technical inspectors in order to replace Mr. Kader Lakeb, technical inspector, whose contract ended on September 22, 1993. The latter received a contract renewal offer for two months, and what an offer...
The proposal was as follows: (A) to travel home once a week; (B) to receive full compensation for travel expenses and incidentals;
(C) to work overtime for the project. We find this behaviour toward our co-worker by the administration flagrant and unacceptable, especially in the Public Service of Canada, as our co-worker, although still a member of the staff, did not receive this offer until he was said to have resigned, which was not the case.
(Exhibit A-25) ADDENDA TO (DOCUMENT NO. 6) Correction to the memo of September 20, 1993, ref. no. T8080-2-1165
RE: “ARUN” SHIP PROJECT, SEPT-ÎLES TO WHOM IT MAY CONCERN: We hereby wish to specify that the policies of our department vary according to the individual in charge, and that Mr. Kader Lakeb has unfairly been subjected to a discriminatory and unacceptable attitude by the manager.
Mr. Lakeb was not entitled to the same terms as those proposed to us, which are listed in the memorandum mentioned above.
As from the end of September 1993, Kader Lakeb’s contract was renewed twice. He continued to go home every weekend until his last contract ended in January 1994.
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Decision Page 16 In cross-examination Rosaire Sévigny stated that, after May 1993, two more four-month projects came up, one at Matane, the other at Les Méchins. The expenses incurred by inspectors Pierre Fraser and Charles Laliberté were reimbursed in accordance with the regular rates contained in the Travel Directive. Neither man was “relocated.”
Evidence of the employer Richard Houde The testimony of the Purchasing Manager, Richard Houde, may be summarized as follows.
Toward the middle of April 1993, his superiors informed him that Kader Lakeb’s status should be reviewed, and that henceforth he would be relocated on a short-term basis. Richard Houde passed on this message to Rosaire Sévigny, who was firmly opposed to the idea. Mr. Sévigny felt that fifteen dollars per day was insufficient, and that inspectors could not be expected to prepare their own meals.
On or about May 20, 1993, Rosaire Sévigny told Richard Houde that, not having received any written instructions, he had not informed Kader Lakeb that his status had changed. As a result, Richard Houde confirmed those changes in writing to Mr. Lakeb (exhibit A-15).
Richard Houde was surprised to learn about the statement submitted by the inspectors (exhibits A-24 and A-25) denouncing the treatment accorded to Kader Lakeb. If the latter had refused the offer that was made at the end of September 1993, Mr. Houde intended to find a solution to the problem. He did not contact the inspectors to discuss the various possibilities with them.
Richard Gravel The testimony of Richard Gravel may be summarized as follows. Richard Gravel is the Chief of Technical Purchasing and Inspections and of Scientific and Professional Services. He is Rosaire Sévigny’s supervisor. According to Mr. Gravel, the circumstances surrounding the Sept-Îles and Matane projects were different.
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Decision Page 17 The inspector went to Matane by car, and stayed in a hotel because the cost of an apartment was exorbitant ($1,400/month). The project lasted from November 1994 to August 1995. The inspector went home every weekend. On the other hand, Kader Lakeb travelled to Sept-Îles by plane, and the cost of an apartment was much more reasonable ($600/month).
As for the Les Méchins project, two inspectors were assigned: the first, from mid-October 1994 to the beginning of December 1994; the other, from December 1994 to June, 1995. They did not need to find a bachelor suite; they stayed in Les Méchins three days a week.
In deciding if trips home are allowed on weekends, much consideration is given to travel costs.
Sylvain Roy The testimony of Sylvain Roy may be summarized as follows. In February 1993, he occupied the position of Manager, Management Services, Supply and Services, and was responsible for financial management.
According to Mr. Roy, as the first application for travel authorization (exhibit A-11) covered a period of under two months, the Travel Directive (exhibit A-2) applied. The travel in question was regular travel; at the time the application was made, it was not known whether the project would continue.
Sylvain Roy is also of the opinion that short-term relocation applies when the stay in question is in excess of four months. In this regard he consulted the Guide to the Administration of Travel, in particular provisions 5.9 and 5.9.5, and concluded that a period of travel cannot be divided. Sylvain Roy told Jacques Parent, the Regional Director, that, when it was certain that a project would last more than four months, he felt the employee should be relocated.
Mr. Roy also attended the meeting on June 7, 1993, where he provided explanations on the directives in question.
Jacques Parent The testimony of Jacques Parent may be summarized as follows.
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Decision Page 18 During the period in question, that is, from February 1993 to January 1994, Mr. Parent occupied the position of Regional Director for Western Quebec.
Kader Lakeb was first assigned to Sept-Îles until the beginning of April 1993; i.e., until a final decision had been made as to whether the Inspection Branch would take on the project.
The head of Financial Services, Sylvain Roy, informed Jacques Parent of certain irregularities in the application of directives.
The airline tickets used by Kader Lakeb had been obtained at a reduced rate. In cross-examination, Jacques Parent stated that, at the beginning of the period in question, it was not sure that the same employee would continue to provide the service; furthermore, inspection services depended on the availability of necessary funds.
ARGUMENTS The arguments of Kader Lakeb’s counsel may be summarized as follows. The employer’s Guide (exhibit E-5) does not form part of the collective agreement. Kader Lakeb was not relocated to Sept-Îles. This conclusion is inescapable, given the contents of the following documents: the competition posting (exhibit A-7); the letter of appointment dated January 24, 1992 (exhibit A-8); the staffing report of February 17, 1992 (exhibit A-9); the job description (exhibit A-10); and Mr. Houde’s memo of February 1, 1993 (exhibit A-22). The same conclusion must be also drawn on the basis of the following factors: Kader Lakeb travelled every week with the approval of his employer, who purchased the airline tickets; Kader Lakeb left Quebec City every week; he ate in restaurants in Sept-Îles and conducted business during meals; upon his return to Quebec City (Ste-Foy), he met with his supervisor; over a four-month period, his supervisor authorized travel at the “regular” rate. One must also consider that Kader Lakeb never left his headquarters area in order to live in another community. He never moved his personal effects. Furthermore, and this is crucial, Kader Lakeb’s assignments never lasted longer than two months at a time (see travel authorizations, exhibit A-11). In addition, as from September, Kader Lakeb’s contract was renewed only for periods of two months or less. Kader Lakeb was never assigned to work in Sept-Îles for four months or more. During the period in question, he came back to Quebec City (Ste-Foy), and also went to Montreal five times. His assignments
Public Service Staff Relations Board
Decision Page 19 were thus not exclusively in Sept-Îles. In short, Kader Lakeb’s was in regular travel status (section 5.9.2 of the Travel Directive).
As an alternative, there are grounds for deeming that Kader Lakeb was not notified from the outset that he would be on “short-term relocation.” The rules of estoppel must be applied in Kader Lakeb’s case, and the employer must be prevented from changing the rules mid-way through the game. In the case before us, the employer had discretion (section 5.9.5 of the Travel Directive, exhibit A-2) that should have been exercised to Kader Lakeb’s advantage. The latter was treated differently from the other inspectors (those working on the Matane and Les Méchins projects). Case law cited: Molbak and Treasury Board (Board File no. 166-2-26472 (which was the object of a judicial review request, Federal Court File T-2287-95)), Foglia and Treasury Board (Board File 166-2-23755), Sorensen et al and Treasury Board (Board Files 166-2-25062, 25069, 24870 and 24905), Ménard v Canada [1992] 3 F.C. 521 (C.A.), Brown and Beatty, Syndicat canadien des travailleurs du papier, local 2995 c. C.I.P. Inc. (Quebec Court of Appeal decision no. 500-09-000749-903, December 8, 1994), Alliance des professeures et professeurs de Montréal (C.E.Q.) et Commission des écoles catholiques de Montréal (Quebec Court of Appeal decision no. 500-09-000342-915 (500-05-005334-899), December 20, 1994), Société québécoise de développement de la main-d’oeuvre de Montréal and Canadian Union of Public Employees, local 1576 (arbitration decision dated January 27, 1995), and Sunil Vijh et al and Treasury Board (Board Files 166-2-26509, 26510, 26512, 26513, 26514, 26516).
The arguments of the employer’s counsel may be summarized as follows. It was Kader Lakeb’s choice to go home every weekend. There is no clear proof that he went back for business reasons. Travel authorizations (exhibit E-11) comply with the directive contained in the letter of May 20, 1994 (exhibit A-15). Once he had been informed that he was considered on short-term relocation, Kader Lakeb was paid accordingly.
In this case the following question must be asked: Was Kader Lakeb’s stay in Sept-Îles from May 20, 1993 to early January 1994 a stay of over four months, and, consequently, a short-term relocation, or was it business travel? The role of the adjudicator is not to decide whether the directive is fair and equitable.
From February 16, 1993 to April 1993, what was involved was regular travel status. However, as from May 1, 1993, there were grounds for considering Kader Lakeb on short-term relocation. In fact, this occurred only on May 20, 1993, as Public Service Staff Relations Board
Decision Page 20 Rosaire Sévigny did not feel it necessary to inform Kader Lakeb of his change of status.
No one kept Kader Lakeb in Sept-Îles. He was free to go back to Quebec City and, for lack of work, lose his job, or to stay in Sept-Îles in accordance with the conditions spelled out in the letter of May 20, 1993 (exhibit A-15). By continuing to work in Sept-Îles, he accepted the new working conditions.
On May 20, 1993, he was informed of those new conditions. He stayed in Sept- Îles until January 1994. In accordance with section 5.9.5 of the Travel Directive (exhibit A-2), this was a short-term relocation, as the stay was in excess of four months.
Jurisprudence cited: Hughes and Department of Health and Social Security et al [1985] 2 W.L.R. 866; Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All E.R. 935.
In rebuttal, the grievor’s counsel stressed that sections 5.9.4 and 5.9.5 of the Travel Directive (exhibit A-2) must be taken into account. He added that, while continuing to work, Kader Lakeb filed a grievance, which demonstrates that he did not accept the new working conditions imposed on him.
REASONS FOR DECISION In this case the burden of proof rested with the grievor, and I believe he has discharged that burden.
The terms “travel” and “relocation” are not defined in the Travel Directive (exhibit A-2). However, this directive (exhibit A-2) does define “government business travel:”
Government business travel means all travel authorized by the employer, and is used in reference to the circumstances under which the expenses prescribed in this directive may be paid or reimbursed from public funds. (voyage en service commandé)
The Relocation Policy (exhibit E-1) defines “relocation” as follows: Relocate or Relocation means 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
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Decision Page 21 of residence to the employee’s first place of duty upon appointment to a position in the Public Service.
The Relocation Policy (exhibit E-1) establishes three types of relocation (“an employer-requested relocation,” “an employee-requested relocation,” and “the relocation of an appointee” (section 1.1.8)). Furthermore, the Policy establishes a type of relocation called “short-term relocation” (section 9.3). Section 5.9.4 of the Travel Directive (exhibit A-2) states that the provisions of the Relocation Policy (exhibit E-1) shall apply when the period of stay at another location is in excess of four months.
It is also interesting to note that “workplace” and “place of duty,” respectively, are defined differently in the Travel Directive (exhibit A-2) and the Relocation Policy (exhibit E-1).
I must consider Kader Lakeb’s situation in order to determine if he was travelling to Sept-Îles or relocated there. Before stating that Kader Lakeb was “on short-term relocation,” as the employer claims, he first had to be “relocated.”
The evidence before me tips the balance toward the conclusion that he was “travelling,” or, if one wishes, and to use the stock phrase contained in the Travel Directive (exhibit A-2), on “government business travel.” Here are the elements of proof favoring this conclusion.
Most often, Kader Lakeb would go to Sept-Îles on Monday and come home Friday. Sometimes he would leave later in the week. He made these trips every week with the consent of his employer. At the end of every week he would come home from Sept-Îles for two reasons: to be with his family and to meet with his boss, Rosaire Sévigny, to talk about work. This situation continued over each successive contract concluded with his employer. The weekly trips made by Kader Lakeb between Quebec City (i.e., Ste-Foy and Sillery) and Sept-Îles are, a priori at least, incompatible with the concept of relocation, and fall instead under the definition of “travel” and “travel status.”
In Sept-Îles Kader Lakeb had a pied-à-terre; that is, “a small housekeeping unit occupied only for short periods at a time” (Larousse dictionary). This arrangement allowed the employer to provide lower-cost accommodation for Kader Lakeb while the Public Service Staff Relations Board
Decision Page 22 latter was in Sept-Îles. However, the apartment was neither a principal residence nor a domicile. Besides, there are none of the usual factors that would lead one to conclude that this was a relocation.
Neither section 1.1.7 nor section 9.3.2 of the Relocation Policy (exhibit E-1) were respected, despite the employer’s decision that the policy was henceforth to apply to the grievor. The effect of these two articles is that the employer must examine, together with the person relocating, the terms for reimbursement of relocation expenses (section 1.1.7). Furthermore, the employer is to discuss all aspects of the employee’s case with him or her, and take the employee’s wishes into account (section 9.3.2). In short, there should be a one-on-one meeting, and the group meeting described during evidence cannot be considered such a meeting, as the circumstances of each inspector were not discussed. In addition, Kader Lakeb was authorized to come home every week at government expense, whereas section 9.3.4 of the Relocation Policy (exhibit E-1) mentions a trip once every three weeks. Lastly, every month Kader Lakeb completed “travel authorizations” (exhibit A-11).
Furthermore, the Relocation Policy (exhibit E-1) defines relocation as “the authorized move of an employee from one place of duty to another.” Both the usual definition of the term “move” as well as the various provisions of the Relocation Policy lead to me conclude that more than a provisional and periodic trip to another city is required to fulfill the conditions for “relocation” and “move.”
The terms “move” (“the act of moving,” according to the Petit Larousse) and “to move” (“to transport furniture from one house to another; to empty a house or place of the furnishings contained therein,” (ibid.)) imply that someone puts down roots, gets established in a particular place. It goes without saying that Kader Lakeb did not “move” to Sept-Îles. His furniture, personal effects and family remained in Sillery, Quebec. Every week he took only the clothing he would need for his trip to Sept-Îles.
In the case before us, there was no “move,” and therefore, no “relocation” as defined in the Relocation Policy (Exhibit E-1). Furthermore, Kader Lakeb kept his “principal residence” in Sillery, Quebec, and his family continued to live there. He did not incur any expenses associated with the purchase of a new principal residence or the moving of his family, as neither occurred.
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Decision Page 23 In the final analysis, there are more determining factors that indicate “travel” than “relocation.” Given that I have concluded that there was no “relocation,” there was therefore no “short-term relocation,” since, as I have said before, before someone can be on “short-term relocation,” there must be grounds for considering that person on “relocation.” This holds true even if the stay is in excess of four months and, according to the Travel Directive (exhibit A-2) (section 5.9.4), the provisions of the Relocation Policy (exhibit E-1) then apply. Even at that, the conditions of the Relocation Policy must be met. Moreover, I do not believe that section 5.9 of the Travel Administration Guide (exhibit E-5) alters this conclusion, as the Guide, as we know, does not form part of the collective agreement. Furthermore, for the period between May 20, 1993 (exhibit A-15) and September 22, 1993, at which time Kader Lakeb’s first contract came to an end, the evidence has not established any of the elements listed above that would have allowed us to conclude that Kader Lakeb had been “relocated”.
Subsequently, Kader Lakeb’s contract was renewed for two-month periods, i.e., from September 22, 1993 to November 23, 1993 (exhibit E-2),and from November 23, 1993 to January 23, 1994 (exhibit E-3). Under these circumstances, there are even fewer grounds to talk about “relocation.” By renewing the contract for two months at a time, the employer undertook to keep Kader Lakeb in his employ for a maximum period of two months, while reserving the right, moreover, to shorten this period. In view of these facts, I share the opinion of Kader Lakeb’s counsel that there couldn’t have been any “short-term relocation” (section 5.9.4 of the Travel Directive) since, above and beyond the fact that there was no “relocation,” under the contract a stay of over four months in Sept-Îles was impossible, as the term of the contract was for a maximum two-month period.
Before rendering my decision, two comments seem essential. First, the documents (exhibit E-11) the employer asked Kader Lakeb to complete before beginning his trips to Sept-Îles were “travel authorizations,” and contain such phrases as “authorization to travel,” “subject of travel,” “itinerary,” etc. These authorizations for “travel” were approved by the employer. As a result, I think that Kader Lakeb was quite justified in believing he was on “government business travel” and not on “relocation.”
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Decision Page 24 Finally, it is surprising to say the least that Richard Houde was prepared to authorize Kader Lakeb’s co-workers to travel to Sept-Îles in accordance with the usual terms of travel stipulated in the Travel Directive (exhibit A-2), but refused to grant the same conditions to Kader Lakeb. Here I recall the testimony of Rosaire Sévigny, whose credibility I assessed and who had more to lose than to win by testifying in favour of his subordinates. Both Rosaire Sévigny’s testimony and the letter (exhibits A-24 and A-25) signed by two of Kader Lakeb’s co-workers and Rosaire Sévigny cast doubt on the authenticity of the reasons stated for not granting Kader Lakeb the benefits set forth under the Travel Directive (exhibit A-2). Indeed, it would seem that the application of these directives varied in accordance with the identity of the person who was asked to travel to Sept-Îles.
In conclusion, it is my opinion that it is the Travel Directive (exhibit A-2) that applies to Kader Lakeb’s situation, and the employer is ordered to reimburse Kader Lakeb for the sums due to him for meals and incidentals when travelling to Sept-Îles.
In accordance with indications from the parties, I remain seized of the grievance in case the parties cannot come to an understanding concerning the exact amount owing to Kader Lakeb.
Marguerite-Marie Galipeau, Board Member
Ottawa, August 8, 1996 Certified true translation
Serge Lareau
Public Service Staff Relations Board