Date: 20210928

Files: 566-02-8671 and 8672

 

Citation: 2021 FPSLREB 110

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Sandra Forbes and felix o’connell

Grievors

 

and

 

TREASURY BOARD

(Correctional Service of Canada)

 

Employer

Indexed as

Forbes v. Treasury Board (Correctional Service of Canada)

In the matter of individual grievances referred to adjudication

Before: Bryan R. Gray, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievors: Julia Williams and Amanda Montague-Reinholdt, counsel

For the Employer: Alexandre Toso, counsel

Decided on the basis of written submissions,
filed January 31 and February 21 and 28, 2020.

REASONS FOR DECISION

I. Summary

[1] This decision considers contract interpretation as arising from two grievances dated June 11, 2013, where a total of $20.00 (Forbes) and $40.00 (O’Connell) is sought as remedy.

[2] Those sums arose from fees paid to medical practitioners for three different work-related medical certificates.

[3] Sandra Forbes and Felix O’Connell (“the grievors”) suggested that the fees should be reimbursed under the “travelling expenses” part of the National Joint Council (NJC) Isolated Post and Government Housing Directive (IPGHD), which allows the Treasury Board (“the employer”) to reimburse costs incidental to travelling for work.

[4] Notwithstanding the elaborate and highly detailed submissions’ approaches to contract interpretation made by the grievors’ counsel, the grievances are denied, as physician fees for medical certificates are not included in work-related travel and related incidental expenses.

[5] Were I to accept the grievors’ reply submission that state that I should allow these grievances, as the parties’ intent and the IPGHD’s purpose is to ameliorate the disadvantages of living and working in an isolated post, then the additional expenses that might properly be reimbursed could be limitless. The words of the actual agreement would lose their importance. This approach to collective agreement interpretation risks defeating the purpose of collective bargaining and must be avoided.

II. Agreed statement of facts

[6] At all relevant times, Ms. Forbes was a Social Programs Officer (WP-03) and Mr. O’Connell was an Electrician (GL-EIM-11) at Correctional Service Canada ("CSC"). At all relevant times, the grievors worked at the Grande Cache Institution in Grande Cache, Alberta. Grande Cache was designated as an isolated post under the Isolated Posts and Government Housing Directive ("IPGHD") of the National Joint Council of the Public Service of Canada ("NJC"). The IPGHD forms part of the Program and Administrative Services (PA) Collective Agreement between the Treasury Board and the Public Service Alliance of Canada, signed on March 1, 2011, and expiring on June 20, 2014. The IPGHD forms part of the Operational Services (SV) Collective Agreement between Treasury Board and the Public Service Alliance of Canada, signed on April 6, 2011, and expiring on August 4, 2014.

[7] Under section 3.1.2 of the IPGHD, in order to be reimbursed transportation and travelling expenses relating to non-elective medical or dental treatment, employees must submit a form completed by their medical practitioner certifying that the treatment: is not elective; is not available at their headquarters (i.e. at the isolated post to which the employee is assigned), and, is required without delay. Medical practitioners routinely charge a form fee of $20.00 for completion of the certification form.

[8] On December 23, 2011, an email was sent by William McCormick to all staff at the Grande Cache Institution regarding “Reimbursement of Fee for Dr’s note under the IPGHD”. That email reads as follows:

Please be advised that when requesting assistance under the Isolated Post Government Housing Directive (IPGHD) — Section 3.1.2, for non-elective medical and dental treatment, the medical practitioner charges a mandatory twenty dollar ($20) form fee. Effective November 24, 2011, we received direction that the IPGHD does not have a provision that would allow for reimbursement of this “form fee”.

 

[9] On January 12, 2012, Mr. O’Connell paid $40.00 for the completion of two certification forms for non-elective treatment. He never received reimbursement of the $40.00 fee. 0n January 31, 2012, Ms. Forbes paid $20.00 for the completion of a certification form for non-elective treatment. She never received reimbursement of the $20.00 fee.

[10] 0n January 24, 2012, Mr. O’Connell presented a grievance at the first level. The grievance was subsequently denied at the first and second levels. On February 9, 2012, Ms. Forbes presented a grievance at the first level. The grievance was subsequently denied at the first and second levels. The grievors’ grievances were referred to the Executive Committee of the NJC. On May 23, 2013, the Executive Committee of the NJC advised by way of letter that it could not reach a consensus. On June 10, 2013, the grievors referred both of their grievances to adjudication. And on June 11, 2013, the predecessor to the current Federal Public Sector Labour Relations and Employment Board (“the Board”), the former Public Service Labour Relations Board, acknowledged receipt of the notices of references to adjudication.

III. Grievors’ submissions

[11] The present case concerns two grievances filed by employees working at a designated isolated post pursuant to the IPGHD. It provides a number of benefits intended to mitigate the additional costs employees incur as a result of living and working at isolated posts. The specific benefit at issue in these grievances is reimbursement for travelling expenses for non-elective medical treatments.

[12] Under the IPGHD, employees must obtain a certificate from a physician confirming that the medical treatment meets the reimbursement requirements.

[13] Thus, this case presents a single, straightforward issue, which is whether, under the IPGHD’s terms, the employer is obligated to reimburse employees for the cost of a physician’s certificate. The grievors maintained that the IPGHD’s wording, context, and purpose all support the conclusion that it covers the cost of the certificate as an incidental expense.

[14] The IPGHD contains the following relevant provisions:

...

General

Collective Agreement

This directive is deemed to be part of collective agreements between the parties to the National Joint Council (NJC) and employees are to be afforded ready access to this directive.

Grievance Procedure

In cases of alleged misinterpretation or misapplication arising out of this directive, the grievance procedure, for all represented employees within the meaning of the Public Service Labour Relations Act will be in accordance with Section 15 of the National Joint Council By-Laws. For unrepresented employees, the departmental grievance procedure applies.

[...]

Purpose and Scope

The purpose of this directive is to facilitate the recruitment and retention of staff delivering government programs in isolated locations. Its provisions are designed to recognize the inherent disadvantages and abnormally higher costs of living and working in isolated posts, as well as to ensure that employees in government housing are treated in a manner equivalent to employees renting/owning similar accommodation from private or commercial sources. These provisions do not constitute income or other compensation that would open the way for personal gain.

Under the Canadian Human Rights Act, and the Treasury Board Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, as amended from time to time, it is the employer’s duty to ensure that the employee with a disability(ies) is fully accommodated to the point of undue hardship. Decisions and practices flowing from this directive shall be inclusive and barrier free.

[...]

Definitions

[...]

Travel Directive (Directive sur les voyages ) means the National Joint Council (NJC) Travel Directive, as amended from time to time.

Travelling expenses (frais de voyage) means the expenses referred to in the NJC Integrated Relocation Directive or the Travel Directive that are incurred by an employee and any of the employee’s dependants for accommodations, meals and incidentals.

[...]

PART III - EXPENSES AND LEAVE

Travelling and Transportation Expenses

3.1 Non-Elective Medical or Dental Treatment

3.1.1 Employees who are granted leave without pay for the following reasons are also entitled to the benefits of this section: illness, injury-on-duty, or maternity/parental leave.

3.1.2 Subject to this section, when employees or their dependants obtain medical or dental treatment at the nearest location in Canada where adequate medical or dental treatment is available, as determined by the attending medical or dental practitioner, and they satisfy their deputy head by means of a certificate of the attending medical or dental practitioner that the treatment:

(a) was not elective;
(b) was not available at their headquarters; and
(c) was required without delay;

the deputy head shall authorize reimbursement of the transportation and travelling expenses in respect of that treatment.

...

 

[15] As reflected in the preceding quote, under section 3.1.2 of the IPGHD, to be reimbursed transportation and travelling expenses related to non-elective medical or dental treatment, an employee must submit a form completed by a medical practitioner certifying the following about the treatment:

a. Is not elective

b. Is not available at their headquarters (i.e. at the isolated post to which the employee is assigned), and

c. Is required without delay.

 

[16] Once again, Mr. McCormick’s email read as follows:

Please be advised that when requesting assistance under the Isolated Post Government Housing Directive (IPGHD) - Section 3.1.2, for non-elective medical and dental treatment, the medical practitioner charges a mandatory twenty dollar ($20) form fee. Effective November 24, 2011, we received direction that the IPGHD does not have a provision that would allow for reimbursement of this “form fee”.

 

[17] On January 12, 2012, Mr. O’Connell paid $40.00 for the completion of two certification forms for non-elective treatment. Mr. O’Connell never received reimbursement of the $40.00 fee.

[18] On January 31, 2012, Ms. Forbes paid $20.00 for the completion of a certification form for non-elective treatment. Ms. Forbes never received reimbursement of the $20.00 fee.

[19] The grievances before the Board raise a single issue: is the Employer obligated to reimburse employees for the cost of the certification forms for nonelective medical treatment under the IPGHD? The sole issue raised by the grievances is one of collective agreement interpretation.

[20] The relevant principles to be applied in interpreting collective agreements are well settled and have been summarized by this Board in numerous cases. For example, the Board described its task as follows in Allen v. National Research Council of Canada, 2016 PSLREB 76 at para 181:

[181] It is trite law that the Board’s objective when interpreting a collective agreement is to discover the intention of the parties to the agreement on the matter in dispute. That intention must be gathered from the written instrument, which is the collective agreement. The Board’s function is to ascertain what the parties meant by the words they used.

 

[21] In Campbell v. Treasury Board (Department of National Defence), 2015 PSLREB 100, the Board articulated the following principles to apply in the interpretive exercise:

[22] The construction of the collective agreement requires an application of the following principles of interpretation — words must be given their ordinary meaning, within the larger context of the clauses and the collective agreement in which they are found, having regard to the purpose of the clauses and the collective agreement.

 

[22] The Board has confirmed that since the NJC’s directives are an integral part of collective agreements, the same principles apply to interpreting the terms of the directives. For example, in Gagnon v. Treasury Board (Correctional Service of Canada), 2017 FPSLREB 48 at para 34, a case concerning the interpretation of the NJC Relocation Directive, the Board held as follows:

[34] Of the several authorities submitted by the grievor, which I read, I note with approval that guidance with respect to an adjudicator’s approach to interpreting a collective agreement. Adjudicator Shannon relied upon a Supreme Court of Canada case (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para. 21), which found that there is only one approach to interpreting a statute; the words of an Act must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. She then found that this same approach to interpretation applies equally to interpreting collective agreements. (see Legge v. Treasury Board (Department of Fisheries and Oceans), 2014 PSLREB 47 at paras. 38-39).

 

[23] Thus, when determining the issue raised in the present case, the Board’s task is to give effect to the plain and ordinary meaning of the words, read in the context of the relevant provision and the IPGHD as a whole, harmoniously with its purpose and the parties’ intention.

[24] The grievors submitted that applying these interpretive principles, the IPGHD requires the employer to reimburse the cost of a certification form for non-elective medical treatment.

[25] The grievors argue that the interpretation they advance accords best with the plain and ordinary meaning of the words that the parties chose, read in their entire context. As noted earlier, section 3.1.2 provides that if an employee obtains a certificate establishing that the medical treatment meets certain criteria, the deputy head “... shall authorize reimbursement of the transportation and travelling expenses in respect of that treatment.”

[26] In its “Definitions” section, the IPGHD defines “travelling expenses” as “... the expenses referred to in the NJC Integrated Relocation Directive or the NJC Travel Directive that are incurred by an employee and any of the employee’s dependants for accommodations, meals and incidentals.” The term “incidentals” is not defined in the IPGHD. However, as noted, the definition of “travelling expenses” refers to the NJC Travel Directive, which provides the following definition of the term “incidental expense allowance”:

... an allowance to cover the costs of items that can be attributed to a period in travel, but for which no other reimbursement or allowance is provided under this directive, and which helps offset some of the expenses incurred as a result of having to travel. It includes but is not limited to such items as gratuities (except for taxis), laundry, dry cleaning, phone calls home (except as specified under 3.4.6), grass cutting, snow removal, home security checks, plant watering, mail services, pet care, telecommunications hook-ups and service, and shipping of some personal effects....

 

[27] The grievors submit that applying the plain and ordinary meaning of those words, it is clear and apparent that the cost of the certification form falls within the definition of “incidental expense”. It can be attributed to a period of travel for an employee for which no other reimbursement or allowance is provided under the IPGHD, and it constitutes an additional expense that the employee must incur as a result of having to travel. As noted, the parties agree that an employee must obtain a certification form to receive reimbursement for non-elective medical travel and that physicians routinely charge for completing the form. Finally, while the definition lists some examples of incidental expenses, it is clear that the list is not exhaustive.

[28] Thus, the plain and ordinary meaning of the words that the parties chose, read in the entire context of both the IPGHD and a related directive referenced in the definition, confirm that “travelling expenses” includes the cost of the certification form for non-elective medical treatment.

[29] The grievors submit that the interpretation advanced by them is also the only one that respects the overall purpose and intent of the IPGHD. As the Supreme Court held in Consolidated-Bathurst v. Mutual Boiler, 1979 CanLII 10 at page 11: “Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties.” see also Allen, supra at para 185.

[30] The Board has recognized the importance of interpreting NJC Directives consistently with their purpose and intent, and has also been guided by the general clauses at the outset of the Directives. For example, in Burden and Cyr v. Parks Canada Agency, 2011 PSLRB 94, this Board’s predecessor considered whether the benefits under the IPGHD applied to employees while on seasonal lay-off. It relied heavily on the purpose of the Directive, as well as the general clauses that apply to the Directive as a whole, in finding in the grievors’ favour in that case.

[31] Indeed, the NJC By-Laws expressly direct that all grievances presented in respect of the NJC directives “... shall be decided on the basis of the intent of the directive or policy being grieved.”

[32] The parties to the NJC chose to include a lengthy purpose-and-scope clause in the IPGHD signalling the importance to be given to its purpose when interpreting its terms. It describes the purpose as “... to facilitate the recruitment and retention of staff delivering government programs in isolated locations. Its provisions are designed to recognize the inherent disadvantages and abnormally higher costs of living and working in isolated posts ....”

[33] Thus, the IPGHD’s express purpose is to recognize and mitigate the abnormally higher costs of living and working in an isolated post. Its terms must be interpreted with that underlying purpose in mind, and those terms of course must not be interpreted in a way that would frustrate the parties’ intention to make working in isolated posts more attractive and thus recruiting and retaining better employees.

[34] The grievors submit that the Employer’s interpretation of the IPGHD directly undermines the purpose and intent of the Directive. In order to receive reimbursement for travelling expenses for non-elective medical treatment—thus mitigating the additional cost the employee has incurred because of living and working in an isolated post—the employee must pay out of pocket for a certification form from a physician, an additional cost the employee has also incurred solely because of living and working in an isolated post.

[35] Thus, interpreting “travelling expenses” to include the cost of the certification form best promotes the purpose of this section and of the IPGHD as a whole — namely, to ensure that employees do not incur additional costs as a result of living and working in an isolated post.

[36] This interpretation is further supported by the second portion of the IPGHD’s purpose and scope section, which provides as follows:

Under the Canadian Human Rights Act, and the Treasury Board Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, as amended from time to time, it is the employer’s duty to ensure that the employee with a disability(ies) is fully accommodated to the point of undue hardship. Decisions and practices flowing from this directive shall be inclusive and barrier free.

 

[37] Again, significance must be drawn from the parties’ decision to include this provision at the outset of the IPGHD to guide all decisions and practices that flow from it. The employer’s refusal to reimburse the cost of the certification form contravenes the direction that practices under the IPGHD must be inclusive and barrier-free.

[38] The benefit at issue is the reimbursement of expenses arising from non-elective (i.e., necessary) medical treatments. Obviously, employees with disabilities are more likely to have more frequent and necessary medical treatments and would, therefore, be more likely to avail themselves of this benefit more often. By requiring employees to incur this additional cost for all non-elective medical travel, the employer has established a system that disproportionately affects employees with disabilities and is thus not “inclusive and barrier free.” This discriminatory result further confirms the grievors’ interpretation as correct.

IV. The employer’s submission

[39] The employer submitted that the clear and plain language of the clause at issue does not require it to reimburse the fees for medical certificates. Furthermore, given this fact, it submitted that the Board has no authority to order such an expense to be paid as it would amount to altering the parties’ collective agreement, which referentially incorporates the IPGHD.

[40] The employer then went further to suggest that because the grievances seek a benefit not contained in the collective agreement (IPGHD), the Board has no jurisdiction to hear the matter. The employer’s counsel cited Board jurisprudence considering the IPGHD in support of this assertion (Antaya et al. v. Treasury Board (Department of Human Resources and Skills Development), 2009 PSLRB 25):

...

36 In my view, subsection 15.1.3 of the NJC By-Laws sets the conditions that must be met for a grievance to be properly filed with respect to an NJC directive. The issue must relate to a situation where an employee challenges the manner in which the employer interpreted or applied the directive to his or her situation, and the way the employer views and applies the content of the directive must be at issue. In this case, it is undisputed that the employer applied the IPGHD in accordance with its express terms. Appendix A does not provide that an LCD allowance is payable to the employees who are posted in Whitehorse and, accordingly, the employer did not pay any LCD allowance to those employees.

37 I agree with the employer that the issue in this case does not concern the employer’s conduct but rather the decision made by the NJC, the author of the directive, to endorse the results obtained by Statistics Canada and to recommend amending Appendix A of the IPGHD. The grievors are questioning the decision-making process followed by the NJC and, ultimately, the content of the IPGHD. Such an issue cannot be considered a “grievance” as defined by subsection 15.1.3 of the NJC By-Laws. Solely on that basis, I conclude that I do not have jurisdiction over this group grievance.

...

 

[41] The employer maintained that words in the collective agreement must be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme of the agreement, its object, and the parties’ intention. (See Communication, Energy and Paperworkers Union, Local 777 v. Imperial Oil Strathcona Refinery (2004), 130 L.A.C. (4th) 239 at para. 40; and Brown & Beatty, Canadian Labour Arbitration, 5th ed., at 4:2100.)

[42] A fundamental presumption is that the parties are assumed to have intended the words expressed in a provision of their collective agreement. (See Communications, Energy and Paperworkers Union of Canada v. Irving Pulp & Paper Ltd., 2002 NBCA 30, (“Irving Pulp”) at para. 10; and Brown & Beatty, note 19, at 4:2100.)

[43] The words in a provision must be construed in their ordinary and plain meaning unless doing so is likely to result in absurdity or would be inconsistent with the entire collective agreement. (See Irving Pulp, note 20, at para. 10; Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at para. 51; and Brown & Beatty, note 19, at 4:2110.)

[44] The fact that a particular provision may seem unfair is not a reason for an adjudicator to ignore it if it is otherwise clear. (See Chafe, note 21, at para. 50; and Delios v. Canada (Attorney General), 2015 FCA 117, at paras. 34 to 36.)

[45] Ontario Power Generation v. Society of Energy Professionals, 2013 CanLII 87655 at para. 33, states as follows:

33. Much has been written about purpose, fairness, internal anomalies, cost or administrative feasibility, and what “should be”. Such considerations only come into play when the language is truly ambiguous and the arbitrator must choose between two or more equally plausible interpretations. The task of a rights arbitrator is to determine what the collective agreement provides or requires, not what he or one of the parties thinks it should say, regardless of the apparent fairness of the effect on either party or on bargaining unit employees. The parties are entitled to no more or less than what the collective agreement stipulates, and clear wording trumps all considerations other than legislation....

 

[46] Contrary to what the grievors argued, section 15.1.2 of the NJC By-Laws does not apply to an NJC grievance referred to the Board. (See Daigneault v. Treasury Board (Correctional Service of Canada), 2017 PSLREB 38, note 11, at paras. 28 to 34.)

[47] First, section 15.1.2 of the NJC By-Laws states that it applies to “... grievances as defined under the PSLRA presented under this grievance procedure ...”. Consistent with section 15.1.5, as follows, the “grievance procedure” does not include any reference to adjudication:

15.1.5 The following are the levels in the grievance procedure:

(a) first level - representative of the Employer authorized to deal with grievances at the first level;

(b) second level - Departmental Liaison Officer/Agency Liaison Officer (DLO/ALO);

(c) final level - Executive Committee.

 

[48] Second, and in any event, the NJC By-Laws do not form part of collective agreements and cannot have the effect of changing the interpretive principles to be followed by the Board, which is “... constrained as a quasi-judicial decision maker to follow generally accepted rules of the legal interpretation of collective agreements” (see Daigneault at para. 28).

[49] The grievors’ position is contrary to the well-established interpretive principles to be followed by quasi-judicial decision makers, which require the Board to construe the words in a provision in their ordinary and plain meaning unless such an interpretation is likely to result in absurdity or would be inconsistent with the entire collective agreement. (See Irving Pulp, note 20, at paras. 10 and 27; Chafe, note 21, at paras. 50 and 51; and Brown & Beatty, note 19, at 4:2110.)

[50] The NJC recognizes as much, as follows, in its National Joint Council Grievance Referral Guide for Labour Relations Practitioners, which is provided to labour relations practitioners: “It must be noted that the decision reached at the [Board] will not be based on the intent of the directive but rather the meaning and interpretation of the specific language.” (See that guide, note 8, under the heading “Adjudication”, at tab 4 of the employer’s book of authorities.)

[51] Third, the Board remains bound by s. 229 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA), which prevents it from rendering a decision that has “... the effect of requiring the amendment of a collective agreement or an arbitral award.” Thus, the Board cannot read in or read out terms from a directive based on its intent.

[52] As such, nothing in the NJC By-Laws can give the Board any power to modify the terms of the IPGHD or to disregard accepted interpretive principles when it decides a grievance that was referred to it.

[53] The IPGHD’s language is not ambiguous and has only one linguistically permissible interpretation. No such interpretation would require the employer to reimburse the cost of obtaining the medical certificate at issue.

[54] The IPGHD provides only for the reimbursement of the “transportation and travelling expenses” with respect to a treatment once the deputy head is satisfied that the treatment meets the three relevant criteria. The plain and ordinary meaning of those words does not include the cost of a medical certificate, and accordingly, the employer did not reimburse them.

[55] Moreover, the medical certificate is a precondition to receiving reimbursement for transportation and travelling expenses; as such, it is separate from those expenses, which are incurred as a result of having to travel.

[56] Thus, the IPGHD clearly contemplates the employer being entitled to request a medical certificate; yet, there is no mention that the employer should bear the cost of such a certificate. If the intent was for the employer to reimburse that cost, it could have been easily specified. There is simply no basis in the IPGHD to ask for the reimbursement of that cost.

[57] In a case which dealt specifically with reimbursing medical certificates, the Board’s predecessor concluded that it could not require the employer to pay for those costs absent a clear provision compelling it to pay. (See Brunelle v. Canada (Treasury Board), 2003 PSSRB 108 at paras. 40 to 43.)

[58] Refusing to pay the cost of a certificate is consistent with the principle that “precise” or “clear and express” wording is required to establish an obligation for an employer to pay a monetary benefit. See Allen, at para. 180; Wire Rope Industries Ltd. v. United Steel Workers, Local 3910 (1982), 4 L.A.C. (3d) 323; Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55 at para. 27; and Volpi v. Parliamentary Protective Service, 2018 FPSLREB 64 at para. 70.

[59] Moreover, “... arbitrators ought not to impose a monetary obligation on an employer which the employer did not bargain to pay, particularly where the purported obligation rests on doubtful or ambiguous language.” (See Palmer and Snyder, Collective Agreement Arbitration in Canada, 6th ed., at 19.46.)

[60] In its submissions, in a far-fetched and convoluted argument, the bargaining agent referred to inapplicable provisions of another directive. If the plain and ordinary meaning of the IPGHD really requires the employer to reimburse the cost of the medical certificate, there would be no need to refer to another directive.

[61] Even if the Travel Directive is referred to, the grievors’ argument is not supported by the wording of that directive and is not even internally consistent.

[62] Nowhere does the Travel Directive suggest that transportation or travelling expenses include the cost of a medical certificate.

[63] Moreover, in its argument, the grievors referred to the definition of “incidental expense allowance” to support the proposition that a medical certificate is part of the incidentals that the employer must cover. Even were medical certificates considered an incidental expense, their costs would then have to be covered by the grievors’ fixed allowance for incidentals. Consequently, the employer has no obligation to reimburse them as a separate expense. (The Travel Directive provides no reimbursement for “incidentals”, only a fixed incidental allowance, which reflects the fact that it covers expenses “... for which no other reimbursement or allowance is provided ...”. Therefore, it defies logic that considering the medical certificate as an incidental would attract reimbursement from the employer as a separate expense).

[64] The jurisprudence clearly establishes that the bargaining agent cannot challenge the IPGHD’s content and effectively bypass the NJC’s bargaining and co-development process. Furthermore, the bargaining agent did not meet its burden of demonstrating that the employer contravened the IPGHD or the relevant collective agreements, since it failed to point to precise language compelling the employer to cover this monetary benefit. Rather, the employer complied with the IPGHD and the collective agreements, as they do not require reimbursing the medical certificates’ costs. The bargaining agent’s argument was contrary to the express terms of section 3.1.2 of the IPGHD and was internally inconsistent.

V. The grievors’ reply submission

[65] The grievors rejected the employer’s submissions on jurisdiction and reasserted their view that the employer focused too narrowly upon the words of the clause at issue and that it ignored the parties’ critical intent, which is to ameliorate the disadvantages of remote workplaces and living. (See Campbell, at para. 22, and Gagnon, at para. 34.)

[66] The grievors added that the employer failed to address an essential element of the case, which is that decisions and practices related to the IPGHD must be inclusive and barrier-free and that the practice of requiring employees to pay $20.00 for a medical certificate has an adverse impact upon employees with disabilities.

VI. Analysis and decision

[67] The Board should be extremely cautious to not add benefits to agreements that the parties to those agreements have not bargained for. Parliament enacted such a restraint upon creative advocacy by parties in s. 229 of the FPSLRA, which prohibits adjudicators from rendering decisions that would alter the terms of a collective agreement.

[68] The grievors in the matter before me relied upon my decision in Gagnon as authority for their rebuttal of the employer’s narrow focus on words, in exclusion of the purpose and intent of the whole clause and agreement. Gagnon also stands as authority for employers (and in this case grievors) not trying to parse the words of an agreement to effectively change it.

[69] As noted by the employer, parties to an agreement must be understood to have chosen the precise words that form their agreement. In this case, the parties have no language dealing with the cost of medical certificates. The facts presented, which were that the grievors travelled to obtain their medical certificates, in no way makes the certificates incidental to travel.

[70] The grievors referred to Consolidated-Bathurst in support of their argument. But the rule of interpretation they cite from that case only applies “where words may bear two constructions.” This is not the situation here. There are not two possible constructions. The language is clear. The reimbursement for medical certificates is not mentioned anywhere in the directive. The reference in Section 3.1.2 to “travelling expenses” relates to the reimbursement of expenses under the NJC Integrated Relocation Directive and the Travel Directive. As the employer correctly points out, this is a reference to what the “incidental expense allowance” (i.e., a lump sum amount) in the Travel Directive is intended to cover. It is not a list of expenses that are to be reimbursed separately.

[71] Furthermore, contrary to the submission of counsel for the grievors, these grievances have nothing at all to do with human rights law and the employer’s duty to accommodate. The grievors’ submission on the adverse impacts for an employee with a disability was made without context to the present case, as no such disability issue arose in the evidence. The fact that other employees seeking reimbursement of transportation and travelling expenses for treatment might be disabled, within the meaning of the Canadian Human Rights Act, does not mean that the directive should be interpreted as saying something that it clearly does not.

[72] The grievors’ submission quoted earlier with respect to the unfair impact of this policy for remote employees having to travel for non-elective medical treatment as compared to urban ones who presumably have easy and near access to medical treatment irrelevant as both the remote and urban employee must pay the $20.00 fee for a medical certificate

[73] In sum, I find that a plain reading of the clause at issue, taken in its ordinary and full context, does not allow for the reimbursement of medical certificate fees.

[74] Given my conclusion on the merits of the grievances, I need not consider the employer’s submissions on jurisdiction.

[75] As such, the grievances are denied.

[76] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VII. Order

[77] The grievances are denied.

September 28, 2021.

Bryan R. Gray,

a panel of the Federal Public Sector Labour Relations and Employment Board