June 11, 2018
21.4.1107
Background
The grievor is an employee of Department X working in City A. On December 28, 2010, the grievor was offered and accepted to work overtime before the grievor’s regular shift (contiguous overtime).
The grievor lives in City B and works in City A. As a result, the grievor is entitled to assistance under the NJC Commuting Assistance Directive.
After working the overtime shift and the regular shift on December 28, 2010, the grievor submitted a travel claim for the mileage incurred driving to and from work. The claim was denied and the grievance was filed.
Grievance
The employee is grieving that the employer has violated the NJC Travel Directive in denying the grievor’s request for transportation expenses on December 28, 2010.
Bargaining Agent Presentation
The Bargaining Agent representative contended that the grievor was not treated within the intent of the Directive as it is their position that the grievor was entitled to reimbursement of mileage as per the Travel Directive as the grievor’s commuting pattern had been interrupted by the overtime. The grievor was called at home on December 28, 2010, and offered to work overtime immediately prior to a regularly scheduled shift. The grievor was scheduled to travel with a co-worker, in a car pool and because of the overtime hours, the grievor had to drive to the workplace alone in the grievor’s personal vehicle (106 km each way). The amount requested was $109.18. The Employer denied the mileage requested under the Travel Directive but granted and paid Commuting Assistance in the amount of $26.04 for the return trip.
The Bargaining Agent referred to subsection 3.1.11 of the Travel Directive in place at the time:
“When authorized travel or overtime causes a disruption in the employee’s regular commuting pattern, the employee shall be reimbursed additional transportation costs incurred between the residence and the workplace.”
The Bargaining Agent representative referred to a document sent by the Director at the time and sent by email October 28, 2006, titled Supplementary Business Expenses – Interpretation Scenarios, which stated that
“The employee would, however, be entitled to claim mileage as a result of the disruption of their normal commuting pattern.”
The presenter also referred to the NJC Communiqué: Kilometric Rates, Questions and Answers December 2005. It was argued that the NJC recognized when the normal commuting pattern of a car pool was interrupted the employee is to be reimbursed in accordance with the Travel Directive.
According to the Bargaining Agent, there was never any question that the grievor would have carpooled. Both consultation notes from February 2011 as well as Employers’ NJC Level 2 précis provide that the grievor would have carpooled but instead used the grievor’s personal vehicle to report to the workplace because of the contiguous overtime. It was explained that the Employer was selective at the first level of reply with respect to the excerpt selected from the 1984 interpretation in Decision 21.4.102. The excerpt quoted by the Employer in the first level reply to the grievance at hand was strictly related to someone who would have used his or her own personal vehicle. The Bargaining Agent’s position is that in cases of overtime, the mileage rate should be paid at any time the grievor was precluded from using her or his normal method of transportation. In the present case, the grievor did incur additional costs as a result of the interruption of the grievor’s normal commuting pattern. In the normal commuting pattern, the grievor would have been a passenger in a car pool. The grievor was unable to do so because of the authorized overtime that was contiguous to the grievor’s shift. Rather than take a cab, which would have cost over $100.00 each way, the grievor drove to work on December 28, 2010. As a result additional expenses were incurred. The Bargaining Agent requests that the Employer pay the grievor in accordance with the grievor’s expense claim submitted (less what was paid for commuting assistance). $109.18-$26.04 = $83.14
Departmental Presentation
It is the Employer’s contention that the Travel Directive does not apply in this instance as the grievor was not “away from the workplace on government travel” and that there is no provision in the Border Service collective agreement to pay mileage for overtime that is contiguous to regular hours on a workday. On November 29, 2016, Comptrollership advised that the grievor was not entitled to the provisions of the Travel Directive as the grievor reported to work under the Commuting Assistance Directive.
The Employer’s position is that the Travel Directive is to ensure fair treatment of employees required to travel on government business. The provisions of the Directive are to provide for the reimbursement of reasonable expenses necessarily incurred while travelling on government business and to ensure employees are not out of pocket. These provisions do not constitute income or other compensation that would open the way for personal gain. Furthermore, the Bargaining Agent representative referred to subsection 3.1.11 of the Travel Directive. On the other hand, according to the Employer, the purpose of the NJC Commuting Assistance Directive is to help defray excessive costs incurred in employee’s daily travel to and from the regularly assigned work site on the days when they are required by management to report for work and so report. Normally, employees are expected to report for work at their own expense since they are free to choose where they will live.
The Employer representative explained that the grievor was paid 14 cents per km round trip for reporting to work as an entitlement under the Commuting Assistance Directive. This amount was paid regardless if driving alone or travelled as a passenger in a carpool. As a result, the grievor never incurred any additional transportation costs in reporting to the workplace.
The presenter referred to a PSLRB decision: Ouellet v. Treasury Board, 2000 PSLRB 15. In this decision it was established that the grievor in this instance was also required to work overtime that was contiguous to the grievor’s normal hours, however, this was accomplished in a single trip. As a result, the costs associated with this trip were the responsibly of the grievor. In conclusion, it is the Employer’s belief that the grievor has been treated within the intent of the Directive and respectfully requested that the grievance be dismissed.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded the employee had not been treated within the intent of the Travel Directive as the employee’s normal commuting pattern had been disrupted by the overtime hours. The grievance is therefore upheld.