June 17, 2009
20.4.226
Background
The employees grieved the employer's refusal to pay the full cost of their protective or purpose-designed footwear in accordance with the new provisions of the Personal Protective Equipment and Clothing Directive in effect January 1, 2006.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the grievors have working conditions that require them to wear protective footwear in order to protect them from the inherent risks associated with their duties of employment. In the past, the grievors have always received reimbursement for a portion of the costs associated with the purchase of new protective footwear.
The Bargaining Agent representative submitted that on October 24, 2005 the employer issued a Communiqué regarding the new Occupational Health and Safety Directive. The Communiqué stated that "the approved change, which will be found at Part XII of the new directive, has been approved for implementation no later than January 1, 2006." and paragraph 12.10.1 states that "protective footwear shall be provided, free of charge."
The Bargaining Agent representative also submitted that the grievors became aware of an email from the employer which stipulated that the effective date for the full reimbursement of protective footwear would be October 1, 2005.
The Bargaining Agent representative submitted that following these communications, the grievors submitted receipts requesting 100% reimbursement of their purchases of protective shoes/boots.
The Bargaining Agent representative submitted that in the 1st level response for one of the grievances, the employer indicated that it understood from the Communiqué that it had certain discretionary powers to reimburse the purchase of safety footwear prior to January 1, 2006. The employer then went on to say that it would analyze the request in terms of the new changes.
The Bargaining Agent representative maintained that the communications from the employer and the 1st level response all confirm that the employer had a discretionary power to fully reimburse the grievors prior to January 1, 2006.
Departmental Presentation
The Departmental representative submitted that the employer requested on November 21, 2005, that supervisors advise their employees not to purchase protective footwear until management had had a chance to review the new Directive and establish reimbursement procedures. On November 29, 2005, the employer sent an email to compensation advisors in service centers stipulating that the new provisions for the reimbursement of protective footwear would be retroactive to October 1, 2005. The Departmental representative submitted that the grievors were not the intended recipients of this email.
The Departmental representative submitted that on December 8, 2005, a meeting was held in which reimbursement of protective footwear was discussed. Three of the grievors were present at this meeting. The following was shared at the meeting: protective footwear purchased prior to October 24, 2005 would receive a reimbursement of $43.43; protective footwear purchased between October 24, 2005 and November 21, 2005 would be reviewed and a decision would be rendered as per the amount of reimbursement; and footwear purchased after November 21, 2005 would not be eligible for reimbursement. On January 9, 2006, an official Communiqué was issued by the employer indicating that the new provisions on protective footwear would take effect on January 1, 2006.
The Departmental representative submitted that grievor #1 purchased his protective footwear on September 2, 2005. At that time the Directive stipulated that the full reimbursement of safety footwear would be done only if the employee's tasks required specialized footwear to perform their duties and if prior approval was received. Management reviewed the grievor's claim and concluded that the grievor was not required to wear specialized footwear during the normal course of his duties; that specialized footwear was available to the grievor should the need arise and that prior approval had not been received for the purchase of the footwear. Therefore the allowance of $43.43 stipulated in the old Directive was reimbursed to the grievor.
The Departmental representative acknowledged that there was some confusion in the department with respect to the effective date of the new provisions of the Directive pertaining to the reimbursement of protective footwear. The department understood that certain flexibility was afforded to departments in the determination of the effective date but that the provisions needed to be in place by January 1, 2006.
The Departmental representative submitted that the grievor # 2 cannot claim to have purchased his protective footwear in reliance on the employer's email of November 29, 2005. The grievor purchased his safety footwear on November 18, 2005; the evidence indicates that the departmental email forwarded to compensation advisors indicating an effective date of October 1, 2005 would have been mistakenly sent to certain employees on December 21, 2005. The Departmental representative submitted that during the 1st level grievance hearing, the grievor and the Bargaining Agent representative claimed the full reimbursement under the old Directive since the grievor needed specialized footwear in order to perform his duties. Management decided that the grievor did not need specialized footwear in the course of his regular duties and that prior approval had not been obtained. Therefore the allowance of $43.43 stipulated in the old Directive was reimbursed to the grievor.
The Departmental representative submitted the grievors # 3, # 4 and # 5 expected full reimbursement for their purchases of protective footwear on December 10, 17 and 18, 2005 respectively. The grievors claim full reimbursement in reliance of the employer's email referenced above. The Departmental representative reiterated that the grievors mistakenly received this email on December 21, 2005, after their purchases. The departmental representative indicated that despite being advised by their managers around November 21, 2005 and again at a meeting on December 8, 2005, all three grievors chose to purchase protective footwear prior to January 1, 2006. All three grievors received the allowance of $43.43 as stipulated in the old Directive in effect at the time of purchase.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Occupational Safety and Health Committee which concluded that the grievors were treated within the intent of the 1997 Personal Protective Equipment and Clothing Directive.
It was agreed that the effective date of the new PPEC Directive was effective January 1, 2006. As such, the grievors were paid the allowance for protective footwear to which they were entitled under the 1997 Directive in effect at the time of the purchase.
The Committee also agreed that it did not have jurisdiction to review the employer's assessment of employees' requirements for purpose-designed footwear under section 11 of the 1997 Directive. It was up to local workplace occupational health and safety committees to assess whether or not employees require purpose-designed footwear and for the employer to provide if it is required.
As such, the grievances were denied.