December 8, 2014
21.4.1070
Background
The grievor is grieving the denial of mileage reimbursement for shifts worked. These shifts were initially booked off as designated paid holidays (DPH).
The grievance was originally processed in error as a regular collective agreement grievance, and therefore was denied at the first level and at the second level based on interpretation of the collective agreement.
Following the referral of the grievance to the NJC, the Employer provided arguments relating to the Travel Directive, specifically 3.1.11 Transportation, noting that there was no disruption to the grievor's regular commuting pattern, as the DPH shifts were worked at the same time of day as grievor's regularly scheduled shifts. Furthermore, the DPH shifts were worked at grievor's regular workplace.
Bargaining Agent Presentation
The Bargaining Agent representative explained that the grievor was statted-off for the Designated Paid Holiday (DPH), and hence was not required to work; however, returned to the workplace after being called back. The grievor was therefore compensated at an enhanced rate of pay for working those days. This constituted a change in the grievor's commuting pattern as the grievor was working on days that had been scheduled off of work. The representative argued that this was materially the same as if the grievor had been called back for overtime. Overtime applies when an officer is required to return to the workplace on a day that he/she was scheduled to be out of the workplace, and as such is compensated at an enhanced rate of pay. Overtime is also considered to be a change in the commuting pattern and is therefore covered by the Travel Directive (Section 3.1.11).
The representative noted that the Employer's second level response outlines the position that as the grievor was originally scheduled to work the shifts in question, there is no change to the grievor's commuting pattern. The Bargaining Agent representative argued, however, that once the Employer had statted the grievor off for the DPH, allowing the grievor to have the day off of work and then hiring the grievor back, constitutes a change in commuting pattern. The grievor now had to return to the workplace on days that the grievor had been scheduled off for. Once the grievor was hired back on those shifts there is a change to the commuting pattern and the grievor is therefore entitled to the compensation as outlined in the Directive. The representative maintained that there is no difference between the grievor being called back for overtime and being called back on the designated paid holidays. Both involve the grievor returning to the worksite on a day that the grievor was scheduled to not be there, and that constitutes a change in the grievor's commuting pattern.
In conclusion, in light of the arguments presented, the Bargaining Agent's submitted that the grievor was not treated within the intent of the Travel Directive, and as such the grievor be reimbursed for travel expenses in order to return to work.
Departmental Presentation
The Departmental representative noted that those days were considered to be designated paid holidays (DPH) for the grievor, and was therefore considered to be "statted off"; the grievor was not required to report to work for regularly scheduled shifts. However, due to operational needs, the grievor was called and offered to work the midnight shift for both days. As these shifts were the grievor's regularly scheduled shifts, the grievor would have worked them if they hadn't been considered as a DPH. The grievor reported to work the midnight shifts and was compensated accordingly (i.e. DPH premium hours at 1.5 times the regular rate of pay).
The representative emphasized that the scope of Section 3.1.11 of the NJC Travel policy provides for circumstances of authorized business travel or overtime. The scenario presented in the grievance does not pertain to either. A grievor "statted off" on a regularly scheduled shift and subsequently called in to work, on a designated paid holiday, does not constitute overtime, nor does it imply the status of authorized business travel. In fact, the grievor was compensated "stat pay". To further support the Employer's position that the grievor did not work overtime, the Overtime Report, which indicates the employees who worked overtime on those dates, does not contain the grievor's name. Section 3.1.11 addresses the issue of disruption in the grievor's regular commuting pattern. It has been specified, in the Amended (NJC) Second Level Grievance Response that the grievor's regular commuting pattern was not altered as the grievor was scheduled to work the grievor's regular schedule (i.e. midnight shifts), hence there was no disruption to the grievor's regular commuting pattern. The grievor commutes from home to work by car. Consequently there would be no grounds for a mileage allowance with regard to the disruption of the grievor's regular commuting pattern. The representative stressed that the grievor was not on travel status, nor was the grievor working overtime. Both the collective agreement and the Travel Directive do not provide for such mileage payments as per the circumstances presented by the grievor.
In conclusion, both the grievor and the Bargaining Agent originally treated the grievance as a collective agreement matter. The original grievance was answered to by all levels of the grievance process and was subsequently transmitted to adjudication. During the process, both the Employer and the Union agreed that this matter was better suited within the Travel Directive (3.1.11), as the grievor was requesting mileage. However, the representative noted that there is no entitlement for mileage allowance in this scenario. The representative submitted that it treated the grievor within the intent of the Travel Directive as per Section 3.1.11 Transportation. Evidence was provided to confirm that the grievor was not entitled to the mileage payment, as the situation does not fall under the requirement of the above mentioned Directive, but rather resulted from a regular scheduled shift that happened to be on a designated paid holiday (DPH) and where the grievor was called back to work after being "statted off". Regardless of a DPH, the grievor was required to work as part of the grievor's regular schedule. The fact that the grievor was "statted off" and subsequently called back to work does not create grounds for a mileage allowance, as it is not travel or overtime. The representative noted that if the grievance were to be upheld, it would contravene the intent of the NJC's Travel Directive which is to compensate travel costs when an employee is away from the workplace on business travel within the headquarters area or overtime. Furthermore, Section 3.1.11. specifies the notion of overtime and disruption of the employee's regular commuting pattern, which in this case, do not apply. For all of the above reasons, the Departmental representative submitted that the grievance and corrective action be denied.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded that the grievor was treated within the intent of the Directive. The relevant part of section 3.1.11 is as follows: "when authorized travel or overtime causes a disruption in the employee's regular commuting pattern…" It was agreed that the issue in this case depended on whether or not working on a DPH was deemed overtime or not. Based on the information provided, this did not seem to trigger an overtime situation as the grievor was originally scheduled to work on the DPH and was paid the DPH premium, but not overtime as none was worked. Notwithstanding, the Committee noted that if the facts had triggered an overtime situation, the Travel Directive would have applied. As such, the grievance is denied.