Date: 20000224

File: 166-2-29137

 

Citation: 2020 FPSLREB 15

Public Service Staff Relations Act

Before the Public Service Staff Relations Board

Between

 

RODRIGUE OUELLET

 

Grievor

 

and

 

TREASURY BOARD

(Human Resources Development Canada)

 

Employer

 

Before: Guy Giguère, Board Member

For the Grievor: Valérie Charette, Professional Institute of the Public Service of Canada

For the Employer: Stéphane Arcelin, Counsel

Heard at Ottawa, Ontario,

November 22, 1999.

DECISION

 

[1] Rodrigue Ouellet has been employed by Human Resources Development Canada (HRDC) since 1968, where he is currently performing the duties of a computer systems administrator at the CS-02 level. On July 10, 1998, he filed a grievance as a result of the employer’s refusal to reimburse him for travel expenses he incurred to return home after working overtime contiguous to his normal hours of work.

[2] The employer denied the grievance at all levels of the grievance procedure. According to the employer, Mr. Ouellet did not meet the conditions set out in the collective agreement. For all practical purposes, the collective agreement provides that:

8.09 When, in a situation involving overtime, an employee is required to report to work before public transportation services have commenced, or to remain at work or to return to work after normal transportation services have been suspended, the use of a taxi or the payment of a mileage rate, as appropriate, shall be authorized from the employee’s residence to the workplace and/or return if necessary.

 

[3] In this matter, the facts are not in dispute; however, the parties do not agree on the interpretation of clause 8.09 of the collective agreement. The parties submitted a joint statement of facts, which they completed with their evidence at the hearing. The following provides a summary of the relevant facts to this decision.

[4] In June 1997, Mr. Ouellet moved from Beauport to St-Pierre-de-l’Île‐d’Orléans. In Beauport, there was a public transportation service to his home, which was located approximately 14 kilometres from his place of work. There is no such service available in St-Pierre-de-l’Île‐d’Orléans, even though his home is only located 18 kilometres from his workplace.

[5] Mr. Ouellet’s wife works in the same building as he does and they drive to work together. Since they only own one vehicle, whenever Mr. Ouellet is required to do overtime immediately following his normal hours of work, he drives his wife home and, after eating, returns to work.

[6] Even when they lived in Beauport, Mr. Ouellet would drive his wife home rather than having one of them take the bus. It was not convenient for Mr. Ouellet’s wife to take the bus home because she had to pick up their son at day care. Furthermore, since he was tired after a normal day’s work and overtime, Mr. Ouellet preferred to drive as the ride was faster than by bus. Mr. Ouellet testified that, on April 11, 1997, he worked overtime until 10:30 p.m. and that he took his car, even though he could have returned home by bus. Mr. Ouellet explained that the ride between his workplace and his home in Beauport took approximately 30 minutes by car, whereas it took one hour by bus at night.

[7] Since they have been living in St-Pierre-de-l’Île-d’Orléans, Mr. Ouellet has to drive his wife home after work whenever he works overtime as there is no public transportation service to that area. When his wife drives home alone, he has to take a taxi. He estimates that a taxi ride from work to his home in St-Pierre-de-l’Île-d’Orléans costs around $23, while his claim for using his own vehicle was $13.68.

[8] Mr. Ouellet testified that Jocelyne Tanguay, his immediate supervisor at the time, refused to authorize the travel allowance he had requested (Exhibit E-1) for 1997‐98 on the basis of an interpretation made by Mr. Lefebvre, an HRDC employee in Ottawa. According to this opinion (Exhibit E-4), clause 8.09 of the collective agreement does not allow for the reimbursement of travel expenses incurred when overtime is done immediately after normal hours of work since Mr. Ouellet normally travels by car and lives in an area where public transportation services are not available.

Arguments for the Grievor

[9] In support of Mr. Ouellet’s grievance, Ms. Charette referred to two decisions of the Board: Marleau (166-2-27329) and Dufour and Lapierre (166-2-23487 and 23488). In these cases, the adjudicators concluded that the grievors were entitled to reimbursement of their travel expenses when they performed overtime following a call back to work contiguous to their normal hours of work. In Dufour and Lapierre, supra, the adjudicator approved the reimbursement of travel expenses for Mr. Lapierre even though he lived in an area where there was no public transportation. Mr. Lapierre normally carpooled with a neighbour, but he had to take his own car when he was called in to work before his normal hours.

[10] According to Ms. Charette, Mr. Ouellet’s situation in this case is not much different from that of Mr. Lapierre. One should not make a distinction between the situation of Mr. Ouellet who carpools with his wife and that of Mr. Lapierre who did the same with his neighbour. To accept the position of the employer would mean that the employer may treat an employee living in an area where there is public transportation differently from an employee living outside such an area.

[11] Mr. Ouellet meets all the conditions set out in clause 8.09 of the collective agreement. An employee living outside an area served by a public transportation system should not be penalized for this, and the employer cannot control where its employees live. Clause 8.09 must be given a broad interpretation, which means that the employee's place of residence should not be taken into account in its application.

[12] In terms of the request for reimbursement of travel expenses by Mr. Ouellet when he lived in Beauport, Ms. Charette maintained that the concept of “normal and reasonable public transportation” under section 7.1.1 of the Treasury Board Secretariat’s Travel Directive (Exhibit E-3) must be used. This directive, as indicated in its opening paragraph, is “deemed to be part of collective agreements”. Pursuant to section 7.1.1, it is not normal and reasonable to ask an employee, who has just completed 12 to 14 hours of work, to use public transportation, which provides reduced services at night, to return home. It is, therefore, the notion of “normal and reasonable public transportation” that should be applied, and Mr. Ouellet is entitled to a travel allowance.

Arguments for the Employer

[13] Counsel for the employer, Mr. Arcelin, argued that, in principle, employees are expected to travel to and from their workplace at their own expense. Thus, section 1.1.4 of the Travel Directive (Exhibit E-3) provides that: “. . . employees are expected to present themselves at their workplace on their own time and at their own expense. The cost of transportation between an employee’s principal residence and workplace, therefore, is not generally reimbursed.” These expenses are only reimbursed under exceptional circumstances.

[14] When drafting clause 8.09 of the collective agreement, the parties did not intend to penalize an employee required to work overtime. Indirectly, the parties indicated that the employee was expected to use public transportation unless he was required to be at work before or after its hours of operation.

[15] The jurisprudence referred to by the grievor's representative is restricted to situations where the employee was called back to work. Clause 9.03 of the collective agreement would have applied if Mr. Ouellet had been called back to work and, pursuant to the jurisprudence, Mr. Ouellet would have received reimbursement of his travel expenses. However, the wording of clause 9.03, which is identical to that in Dufour and Lapierre, supra, is quite different from that of clause 8.09. Clause 9.03 reads as follows:

9.03 When an employee is called back to work under the conditions described in clause 9.01 and is required to use transportation services other than normal public transportation services, he shall be reimbursed for reasonable expenses incurred as follows:

a) a mileage allowance at the rate normally paid by the Employer where the employee travels by means of his own automobile;

or

b) out-of-pocket expense for other means of commercial transportation.

Time spent by the employee called back to work or returning to his residence shall not constitute time worked.

 

[16] The personal circumstances of an employee are his own and the employer must not suffer the consequences. Mr. Ouellet made the decision to live in an area that did not have public transportation and the employer should not be penalized for this. Mr. Ouellet was not called back to work; he worked overtime contiguous to his normal hours of work. Clause 8.09 of the collective agreement does not provide for carpooling; it only refers to public transportation.

[17] Clause 8.09 of the collective agreement provides that Mr. Ouellet is not entitled to reimbursement of his travel expenses when he lived in Beauport. This area is served by public transportation and Mr. Ouellet was able to use it. We have to restrict ourselves to the concept of “public transportation services” in clause 8.09 and it is not appropriate to elaborate on the concept of "normal and reasonable public transportation”.

Reply of the Grievor

[18] Mr. Ouellet’s representative indicated that clause 8.09 of the collective agreement should be given a broad interpretation. The purpose of this clause is to ensure that the employee is compensated so that he does not incur any additional travel expenses. It goes against common sense to claim that an employee may not benefit from clause 8.09 if he lives in an area where there is no public transportation. It is not necessary for a public transportation system to exist for this clause to apply. As seen in Marleau, supra, Mr. Marleau was compensated for his travel expenses even though there was no public transportation system in place and he used his own vehicle every day to go to work.

Reasons for Decision

[19] The points in issue involve a determination of whether Mr. Ouellet met the conditions set out in clause 8.09 of the collective agreement to enable him to receive compensation for his travel expenses when he lived in Beauport, which has a public transportation system, and St-Pierre-de-l’Île-d’Orléans, which does not.

[20] First, Mr. Ouellet testified that, when he lived in Beauport, this area was served by public transportation but he preferred to use his car since this mode of transportation was faster and more practical. This way, he could pick up their son at day care while driving his wife home, and after eating, return to work.

[21] Mr. Ouellet’s representative argued that the concept of “normal and reasonable public transportation” in section 7.1.1 of the Travel Directive (Exhibit E-3) had to apply and that it was not “normal and reasonable” to expect an employee to use a public transportation system to return home after 12 to 14 hours of work.

[22] Under the circumstances, I do not deem it necessary, contrary to Ms. Charette’s argument, to examine whether the concept of “normal and reasonable public transportation services" applies. If Mr. Ouellet’s wife had taken the car, he would not have had to make the return trip to work. In so doing, he would have avoided at least one hour of driving and could have left work sooner, by bus. It is, therefore, my view that Mr. Ouellet does not meet the conditions set out in clause 8.09 of the collective agreement for reimbursement of travel expenses incurred when he lived in Beauport since there was a public transportation service to this area.

[23] Second, Mr. Ouellet testified that St-Pierre-de-l’Île-d’Orléans did not have a public transportation service and his representative argued that the area where an employee lives need not have a public transportation system to enable him to be entitled to the compensation provided in clause 8.09 of the collective agreement. She argued that clause 8.09 should be interpreted in the same manner as the call back provisions in Marleau, supra, and Dufour and Lapierre, supra.

[24] In those decisions, the collective agreement specified that, in order to obtain compensation for travel expenses, the employee “is required to use transportation services other than normal public transportation services”. Clause 8.09 of the collective agreement provides that an employee shall be compensated for travel expenses incurred as a result of having “to report to work before public transportation services have commenced, or to remain at work or to return to work after normal transportation services have been suspended”.

[25] A reading of these two clauses seems to indicate that the language used in the case of overtime (clause 8.09) is somewhat more restrictive than that used for call back situations. Does this mean, however, as claimed by counsel for the employer, that only those employees who live in an area that has a public transportation system are entitled to a travel allowance?

[26] In their arguments, both parties used the Travel Directive (Exhibit E-3) to interpret clause 8.09 of the collective agreement. The Directive is deemed to be a part of the collective agreement and thus assists in interpreting clause 8.09. As indicated in the preamble to the Directive, its provisions are mandatory and its purpose is to ensure that all employees of the Public Service are treated equally.

[27] Section 7.1.1 of the Directive provides that, “where an employee is required to use transportation services other than normal and reasonable public transportation”, he is entitled to a travel allowance “for overtime which is contiguous to the employee’s normal hours of work and, as a direct consequence of the time of travel, the employee’s normal mode of transportation is precluded. . .”

[28] Mr. Ouellet is required to use a mode of transportation other than public transportation since there is no such service for St-Pierre-de-l’Île-d’Orléans. Mr. Ouellet, who normally carpools with his wife, obviously cannot use this mode of transportation to return home when he is asked to do overtime; thus, he is precluded from using his “normal mode of transportation”.

[29] Mr. Ouellet, therefore, meets all of the conditions set out in section 7.1.1 of the Travel Directive. Since the Directive is part of the collective agreement, section 7.1.1 may be used to interpret clause 8.09. I believe it is not necessary for a public transportation system to serve the area where an employee lives for the conditions of clause 8.09 to be met.

[30] The fact that Mr. Ouellet is required to use his automobile to return to work and to return home causes him to incur additional transportation expenses. I find that, under the circumstances, Mr. Ouellet should not incur such expenses. I am satisfied that Mr. Ouellet has met the conditions set out in clause 8.09 of the collective agreement. Since Mr. Ouellet chose to be reimbursed on the basis of mileage rates, he should be compensated on the basis of the amount claimed since he moved to St‐Pierre‐de‐l’Île‐d’Orléans.

 

[31] For all these reasons, I allow this grievance for the travel allowance requested since Mr. Ouellet has been living in St-Pierre-de-l’Île-d’Orléans, and I deny it in respect of the travel allowance requested for the time he lived in Beauport.

(Type date here ...mmm dd, yyyy).

Guy Giguère
Board Member

 

OTTAWA, February 24, 2000

 

Certified true translation

 

 

 

 

 

Serge Lareau