December 15, 2016
21.4.1089
Background
The employee is grieving the Employer’s decision to deny mileage and meal allowances while on assignment between November 25, 2013 and November 24, 2014.
The grievor applied for a job posting that required working part-time at an institution in City A and part-time at an institution in City B. Upon becoming the successful candidate on the selection process, the grievor was asked to sign an assignment agreement which stated that the grievor would not be entitled to the provisions of the NJC Travel Directive as the grievor is not to be considered on travel status for the duration of the assignment. Furthermore, the assignment agreement states that the change in workplace was not at the Employer’s request, but rather was a voluntary decision made by the employee.
The grievor signed both Assignment Agreements on November 29, 2013, but, as noted in the grievance, does not believe that entitlements under the Travel Directive should be lost in responding to an operational need of the Employer and as such, it was not an employee-requested assignment.
Grievance
The employee is grieving the Employer’s decision to deny travel expense claims.
Bargaining Agent Presentation
The Bargaining Agent representative contended that the grievor was not treated within the intent of the Directive as the grievor’s temporary work locations of City A and City B are situated outside of the headquarters area. As such, the employee was indeed on travel status for the duration of the assignment and therefore entitled to travel benefits.
The representative continued to explain that once an employee is assigned to a temporary workplace outside of the headquarters area, it must be concluded that the employee is on travel status. At no time does the Directive provide discretion to the Employer to determine that an employee is not on travel status for budgetary reasons. The representative submits that allowing the Employer this discretion would contravene the intent of the Directive and could lead to ongoing situations of departments not authorizing travel status due to budgetary restraints.
In addition, the Bargaining Agent representative argued that the Employer cannot, by virtue of individual agreement, require an employee to renounce his or her rights under the collective agreement to which the parties are bound. The NJC Directives have been designed to ensure a uniform treatment for all employees to which they apply, and it cannot be accepted that an Employer may circumvent them as it sees fit. The representative maintained that doing so is in bad faith and contravenes the applicable collective agreement recognizing the Bargaining Agent as representing the employees in matters of negotiation.
Departmental Presentation
It is the Departmental representative’s position that the grievor was treated within the intent of the Travel Directive. He stated that it is clear from past NJC and PSLRB precedents that the Employer has the authority to determine whether travel expenses will be reimbursed. The Employer may even, in certain circumstances, terminate an assignment and no longer be required to reimburse the costs incurred by the employee.
The Departmental representative contended that in order to respond to the grievance in question it is not necessary to determine whether the Employer’s reasons for denying travel benefits were viable, but only whether, according to the spirit of the directive, denying travel status runs counter to the Directive.
The Departmental representative stated that it is recognized that in certain situations, the Employer may specify in the assignment agreement or in the letter of offer that travel expenses will not be reimbursed. In its Purpose and Scope, the Directive highlights the need for departments to incur “reasonable expenses”. The Employer would be in contravention of this principle if it reimbursed travel expenses when the employee was deemed to not be entitled to them, as set out in the assignment agreement. Otherwise, any reimbursement would amount to personal gain, which is contrary to the spirit of the Directive.
The Employer representative explained that according to the Directive, “travel status” occurs when an employee is on government travel “authorized” by the Employer. The employee’s assignment began after having applied for the job offer of the grievor’s own volition and signing two agreements, all of which stipulated that the grievor would not be considered to be on travel status and that no travel expenses would be paid. The Employer representative considers that it has exercised its discretion under its right as management and that this does not contravene the collective agreement.
Executive Committee Decision
The Executive Committee reviewed the report of the Government Travel Committee and noted that it could not come to an agreement on the intent of the Directive. The Executive Committee could not reach consensus either. As such, the Committee reached an impasse.