April 20, 2011
21.4.1014
Background
The employee grieved the department's decision to limit reimbursement of travel expenses incurred during the period of June 4, 2002 to April 30, 2003. The grievor is requesting reimbursement for travel expenses retroactive to December 1, 1996.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that there is no dispute that prior to May 2003 the employer required the employees to use their Personal Motor Vehicles (PMV) in the performance of the duties and that the employee was entitled to the reimbursement of the higher rate of mileage in accordance with the NJC Travel Directive. The only issue to be determined is the effective date.
The Bargaining Agent representative indicated as a way of background that the grievor completed several periods of term employment in her present position prior to being hired indeterminately in December 1996. The grievor's letters of "specified period of employment" stated, as a condition of employment, that she was required to possess a valid Class 5 driver's license which she was required to maintain throughout her tenure in that position. All subsequent offers of employment identified that the conditions of employment remained unchanged. The Bargaining Agent representative also noted that a competition poster for an identical position indicated that candidates are required to provide their own transportation within the worksite and must have a vehicle insurance policy that includes a rider for business use.
The Bargaining Agent indicated that the Department, while discussing resolutions for the incorrect application of the Directive, was aware of differing views on the effective dates for the remedy. The Bargaining Agent is therefore of the view that the Department knew or ought to have known the circumstances giving rise to the grievance.
The Bargaining Agent representative indicated that the grievor did not receive notification of the Department's decision that the period of retroactivity would not include the period between 1996 and May 31, 2002 until January 25, 2007. She subsequently filed her grievance on February 21, 2007.
It was noted that the first level grievance reply states that the reimbursement dates used represent the tenure of the Detachment Commander accountable for the decision. The Bargaining Agent representative submitted that the tenure of the Detachment Commander should not have been the deciding factor. The deciding factor resides in the provisions of the Travel Directive.
The Bargaining Agent representative indicated that the Department should be barred from raising timeliness as the issue was never raised in previous levels of the grievance process. She referred the Committee to NJC decisions 21.4.831 to 21.4.833, dated October 29, 2003, wherein it states: "Beyond the issue of substance, timeliness had never been previously argued; therefore the employer had waived its right. …"
Likewise, the Department's reliance upon jurisprudence (NFB v. Coallier, FCA # A-405-83) should not be accepted as the grievor's case does not constitute a continuing grievance. Rather it is a single breach for the following reasons:
- The Department does not dispute the entitlement to the higher rate of mileage;
- The Department does not dispute that the NJC Travel Directive was incorrectly applied;
- The grievor did not become aware of the Department's decision regarding retroactivity, until January 25, 2007;
- At the time the grievance was filed, nearly 4 years had elapsed since the Department eliminated the requirement for employees to use their PMV so the issue of continuation is not there;
- The grievance is not untimely and the Department had not previously raised the issue of timeliness.
The Bargaining Agent representative submitted that the interpretation formed should be in favour of the grievor as the Department has already conceded to that interpretation.
Departmental Presentation
The Departmental representative noted that although the Bargaining Agent raised concerns surrounding the application of the NJC Travel Directive during a Labour Management Relations Committee (LMRC) meeting held on March 15, 2001 neither the Bargaining Agent nor the employee submitted a grievance on the issue at the time.
The Departmental representative indicated that management became aware of the misapplication of the Travel Directive around October 31, 2002 and subsequently began to address the issue and consider corrective measures. The Department engaged in discussions with the affected employees to establish a reasonable period of retroactivity for reimbursement. The employees expressed their belief that they should be reimbursed retroactive to the date they were hired.
The Departmental representative indicated that despite the error on the part of management regarding the correct application of the NJC Travel Directive, the practice was accepted by those affected and was never disputed. The Departmental representative submitted that in raising concerns regarding employees' entitlements during an LMRC meeting in 2001, the Bargaining Agent and the employee demonstrated knowledge of the NJC Directives yet despite this the grievor did not file a grievance at that time.
The Departmental representative indicated that management acted diligently in ceasing the incorrect application of the NJC Travel Directive when they became aware of the error in October 2002. Management ceased requiring employees to use their PMVs and began providing transportation. Management made the appropriate changes in good faith.
The Departmental representative indicated that the grievor also bears some responsibility in ensuring her rights are protected. Her failure to grieve the issue while the practice was in place clearly suggests that she had consented to the practice and had accepted that management was applying the Directive correctly. Furthermore, the grievor waited 4 years from the time management advised of the misapplication of the Directive in 2003 to file her grievance in 2007.
The Departmental representative requested that the grievance be dismissed on the basis of timeliness and that corrective measures be denied. In the event that the Committee finds in favour of the grievor, the representative asked that remedy be limited to the 25-day period immediately preceding the grievance presentation, in accordance with the Coallier decision.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Government Travel Committee that concluded that the grievor had not been treated within the intent of the Travel Directive. As such, the grievance is upheld.
The Executive Committee considered the requested corrective measures and the issue of retroactivity. The Committee requested that the department work with the grievor towards reaching a consensus on a reasonable and practical approach to the calculation of the retroactive travel expenses and to report back to the Executive Committee within 90 days.
As the parties were given the opportunity to come to an agreement and were not able to, the Executive Committee is directing the department to comply with its decision of April 20, 2011 and to implement a full settlement with respect to the retroactive travel expenses from December 1, 1996 to June 3, 2002.