June 11, 2018
21.4.1105
Background
The grievor worked at Department X in City A, Province Y. In August of 2009, the grievor suffered an injury on duty and went on leave for an extended period of time (approximately 7 years).
In or around 2013, the Department was attempting to secure suitable alternate employment for the grievor at a different work location. Based on Health Canada’s assessment, the grievor was fit to return to work with a geographical restriction to Region M. Following receipt of this information the grievor was considered for a position in City B; however, given that the grievor did not meet the linguistic profile, the Employer did not offer the grievor the position. At that time, the provincial workplace insurance board suggested an assignment, in order to facilitate the gradual return to work, and to cover financial expenses related to travel, subsistence and accommodations. The assignment suggestion was also raised by the grievor’s union representative during consultations and over the phone.
In December of 2015, the Employer was advised that the grievor’s geographical restrictions had changed and that the grievor was now medically better suited to remain in Region N for employment. Following receipt of this information, on February 22, 2016, the grievor was offered an indeterminate deployment to City C with Department X.
It should be noted that the grievor originally owned a condo in City A, but in 2014 (while still on leave) made the decision to move with the grievor’s spouse to City D. The letter of offer for the position in City C indicated that the grievor would not be entitled to reimbursement for relocation expenses or travel expenses for this deployment and should the grievor decline the offer, the Department would consider this a termination of employment.
As the grievor was now residing in City D, the grievor requested a later start date in order to find accommodations closer to the new place of duty. The Employer amended the start date and the grievor accepted the terms of the agreement on March 2, 2016.
The grievor rented a short term furnished apartment and reported to the new place of duty on April 4, 2016. The Employer and grievor agreed on a Graduated Return to Work (GRTW) schedule from April 4 to May 27, 2016.
Weeks 1 & 2: 3 days per week at 4 hours per day (Monday, Wednesday, Friday 8:00 – 12:00)
Week 3: 4 days per week at 4 hours per day (Monday, Tuesday, Thursday, Friday 8:00 – 12:00)
Week 4: 4 days per week at 6 hours per day (Monday, Tuesday, Wednesday, Thursday 8:00 – 2:30)
Week 5: 4 days per week at 6 hours per day (Tuesday, Wednesday, Thursday, Friday 8:00 – 2:30)
Week 6: 5 days per week at 7.5 hours per day (Monday, Tuesday, Wednesday, Thursday, Friday 8:00 - 4:00)
Weeks 7, 8, 9, 10, 11, 12: 4 days per week at 7.5 hours per day (Monday Tuesday Wednesday Thursday 8:00 – 4:00)
Upon arriving at the new workplace, the grievor became aware of another employee from City E, who was offered full relocation to City C and was given an assignment several months prior to a full relocation. The grievor requested entitlements under the NJC Travel Directive in order to adjust to returning to work after many years. According to the grievor, if the Employer authorized an assignment for a few months the grievor would have been on travel status and would be entitled to expenses for every third weekend home, rent, meal and incidental expenses.
In light of this information, the grievor had discussions with management which resulted in a grievance being submitted on April 13, 2016.
Grievance
The employee is grieving that the Employer has denied entitlements under the Government Travel Directive.
Bargaining Agent Presentation
The Bargaining Agent representative argued that the denial of an assignment/travel status contradicts the Travel Directive principles of trust, flexibility, respect and valuing people. A trial period of work assessment would have assisted in the transition back to the workplace and would have fostered a feeling of support from the Employer. Instead, the grievor received an ultimatum letter of offer that if declined would have resulted in termination. Given the number of years that had passed since the grievor had last worked, the grievor was unsure of success. The grievor was facing both a move and starting afresh with the Department and this was daunting. According to the Bargaining Agent, rebuilding trust at this stage would have been positive for the grievor.
Also, the fact that in accepting the position, the grievor would be separated from the grievor’s spouse remained a factor. The grievor’s spouse was a large part of the support network outlined by the provincial workplace insurance board and the ability to return home to the grievor’s spouse in City D remained imperative to the grievor. With travel status there would have been the benefit of the provision to travel home every three weeks. (subsection 3.3.12)
In addition, upon arrival at the workplace, the grievor became aware that there were a number of employees who were there who were on travel status. The grievor did not feel valued.
The Bargaining Agent requests that the grievor be compensated for expenses as applicable in the Travel Directive.
Departmental Presentation
The Employer representative indicated that the grievor was not authorized for travel status and the decision of authorization was within the Employer’s discretion and authority to make (s. 1.1.1). Both the provincial workplace insurance board and Health Canada were explicit – the grievor could not return to work at the prior workplace, the grievor’s substantive work location. Health Canada advised the grievor was medically suited to work in the Region N. Accordingly, the grievor was offered a deployment to City C.
Further, according to the Employer, an assignment would not have been in the best interest of the grievor. In the grievor’s case, had the assignment been unsuccessful or reached its end date the grievor would have been returned to the substantive position, an impossible option given the medical advice. As such, given the grievor’s permanent restrictions, the Employer feels the deployment was a reasonable course of action for the grievor to return to work.
It is the Employer’s opinion that regardless, whether the grievor may have been in City D when accepting the offer, the grievor’s presence there was a personal choice and not a result of any operational requirement, work location change, or request of the Employer. At no time was the grievor assigned to work in City D, therefore the Employer was not obligated to pay any type travel expenses from City D to City C. Again, the restrictions and limitations provided for the grievor’s return to work, from both the provincial workplace insurance board and Health Canada, stated that a position in Region N would best suit the grievor for medical support purposes. Thus, if the grievor was in fact present in City D temporarily, permanently or otherwise, the decision to be there did not reflect existent medical opinion and therefore further reinforces the grievor’s decision to be of a personal nature.
The Employer submitted that the grievance should be denied.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded the employee had been treated within the intent of the Travel Directive. The Committee noted that since the grievor was reporting to the workplace and was not on assignment, the grievor was not in travel status. The grievance is therefore denied.