November 8, 2017
21.4.1101
Background
The grievor’s designated work location and headquarters is Location A. The grievor was offered a temporary assignment at Location B for the period of January 13, 2016, to May 13, 2016, (later extended to June 5, 2016). This assignment was offered under the employer’s duty to accommodate as a result of the employee’s disability. Following consultation with the grievor’s union representative, the grievor accepted and signed the terms and conditions of the assignment agreement which noted “the employee will not be on travel status and as a result no travel time will be paid or expenses reimbursed”. It was argued that it was the sole offer on the part of the employer to accommodate the grievor and that the acceptance of the Assignment Agreement was not voluntary, and was done under duress. Refusing this offer would have resulted in a suspension of pay and benefits. The grievor felt he had no choice but to sign the Assignment Agreement.
Grievance
The grievor is grieving the decision to deny the claim for travel expenses incurred during the grievor’s assignment at Location B from January 13, 2016, to May 13, 2016, and for any extensions that may apply (until June 3, 2016).
Bargaining Agent Presentation
The Bargaining Agent representative explained that the temporary assignment at Location B for the period of January 13, 2016, to May 13, 2016, and extended until June 5, 2016 was an accommodation assignment. The agreement states the following: “The employee will not be on travel status and, as a result no travel time will be paid or expenses reimbursed”. The grievor states that the acceptance of this agreement was not voluntary and was done under duress. According to the grievor, there was no choice but to sign it. If the grievor didn’t accept it, the grievor would have been on leave without pay and the WCB payments would have been cancelled, and as such, there was no choice but to accept. It was the only work offer under the Duty to Accommodate provided to the grievor.
The Bargaining Agent explained that the grievor was not given the 30-days’ notice before the assignment as it is written in the Travel Directive at section 1.9.2 (Workplace change - applies within the headquarters area only).
Subsection 1.9.3. “When conditions under workplace change outlined in s. 1.9.2 are not met, transportation shall be provided to the temporary workplace, or the kilometric rate paid for the distance between the home and the temporary workplace, or between the permanent workplace and the temporary workplace, whichever is less.”
Therefore, the Bargaining Agent argues that according to s.1.9.3, the grievor should receive the kilometric rate for the distance between the home and the temporary workplace, which is less than the distance between the permanent workplace and the temporary workplace in this case. The grievor is seeking reimbursement for the kilometric rates payable for the use of a privately owned vehicle driven for every day on which an employee is authorized to use a private vehicle on government travel and the parking cost (s. 3.2.11), as well as for applicable meals (under s.3.2.9).
The Bargaining Agent representative requests reimbursement to the grievor of all travel expenses to which the grievor is entitled, under the related NJC Directive.
Departmental Presentation
It is the Departmental representative’s position that the grievor was treated within the intent of the Travel Directive.
The Departmental representative indicated that on January 14, 2016, the grievor accepted a temporary assignment at the Location B, for the period of January 13 to May 13, 2016. The Assignment Agreement clearly indicated the grievor would not be on travel status, and the grievor took several days to review the agreement before signing it. The grievor subsequently accepted an extension of the assignment to June 5, 2016. This agreement also noted the employee would not be on travel status and would not be eligible for travel expenses.
In determining whether or not the grievor would be on travel status during the assignment at Location B, management consulted Labour Relations Bulletin 2014-03. Management determined that this was not an exceptional circumstance which would warrant placing the grievor on travel status. This was a temporary assignment to accommodate the grievor who was no longer able to perform the duties of the substantive position; this was not a situation where qualified and available candidates could not be identified within headquarters area.
The Employer representative referred to two other decisions of the NJC 21.4.997 and 21.4.998 where the Executive Committee concluded there was no entitlement pursuant to the Travel agreements for positions outside their headquarters areas; the agreements indicated travel expenses would not be paid.
The Employer representative argues that subsection 1.1.2 of the Travel Directive (April 1, 2008) states “Government travel shall be authorized in advance in writing to ensure that all travel arrangements are in compliance with the provisions of this directive”. The grievor in the case at hand did not obtain authorization for any travel expenses in advance, according to the Employer. In addition, the manager specifically recalls a discussion where the grievor was provided with the location of a free parking area nearby that employees often used. On January 22, 2016, the manager sent an email to the grievor denying the request for travel status; the manager reiterated that the assignment agreement the grievor signed indicated travel expenses would not be reimbursed. The grievor was aware at the outset of the assignment that travel expenses would not be reimbursed during the assignment.
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.