September 30, 2020
21.4.1124
Background
The grievor works at Department X and was appointed to Area A (headquarters) and worked in Unit F. In 2010, due to a permanent medical restriction that prevented them from obtaining and/or maintaining the duty firearm, the grievor was accommodated and assigned to Unit G, an unarmed work environment located 15 kms from headquarters in City B, Province M. On November 26, 2015, the Employer indicated that Unit G operations was transforming into an armed work location. As a result, accommodated Unit G employees were offered at-level work in Area A, including Unit H.
Following a meeting with the Employer regarding organization and work location changes, on December 2, 2015, the grievor submitted their preference to work at the commercial area of Area A. However, a general email sent to staff dated January 5, 2016, announced workplace changes and indicated that the grievor would be moving to Unit H. Accordingly, the grievor commenced work at Unit H on February 3, 2016. A letter of offer was not issued until April 11, 2016, stating that the grievor’s initial assignment had been changed from Unit G to Unit H effective February 1, 2016.
In July 2016, the grievor submitted travel claims for both mileage and meals, along with amended time sheets, for the period from February 3, 2016 to April 1, 2016. These claims were denied by the Employer. The grievor continues to submit travel claims for reporting to Unit H. It is to be noted that to date, the grievor has yet to sign the letter of offer.
Grievance
The employee grieves that the Employer has violated the NJC Travel Directive.
Bargaining Agent Presentation
The Bargaining Agent representative is of the opinion that the grievor was not treated within the intent of the Directive. Rather than deploying the grievor to their new position outside of the headquarters area, the Employer assigned them to Unit H by way of a cost centre change.
The representative stated that given that the grievor’s headquarters remained at Unit F, they were required as a result of the assignment to report to Unit H, which was outside of the headquarters area. Therefore, the grievor was entitled to the provisions of the Travel Directive, Article 3.2 – Travel Outside of Headquarters, no overnight stay. This included the provision for mileage expenses and meal allowances. When the grievor requested these expenses, they were denied and filed a grievance.
Previously, the grievor travelled 60 km each morning, from home to the City B office, and that took approximately an hour. The requirement to drive the additional 35 km each way added more than a half an hour each way. The representative argued that such additional commutes are fully contemplated in the Purpose and Scope of the Travel Directive, which provide for the reimbursement of reasonable expenses necessarily incurred while travelling on government business and to ensure employees are not out of pocket. The representative maintained that the employer cannot assign an employee to another workplace without being responsible for compensating the employee for the additional costs incurred as a result.
The representative stated that two months prior to assigning the grievor to Unit H, the Employer had been informed that a deployment was required to move the grievor to a new workplace, however, opting instead to assign the grievor to Unit H. Therefore, as the grievor was on assignment, and had directed them to report to Unit H, the Employer consequently authorized the travel necessary to get to the assigned workplace. Though at or around that same time, in late 2015, the Employer inquired about whether the grievor’s circumstances would have entitled them to the provisions of the Relocation Directive, as the grievor was not deployed, they were unable to avail themself to the provisions of the Relocation Directive. Had this been the case, the grievor would have been able to consider relocating to be within a reasonable commute to the workplace.
The representative reiterated that the Employer cannot circumvent the provisions of the Travel Directive by simply changing an employee’s cost centre. The Employer changed the cost center even though they were made aware that this was not the appropriate action to take, given the grievor’s letter of offer and that the Employer was moving them outside of the headquarters area. The representative noted two cases of jurisprudence that also support this grievance (21.4.981 and 988).
As the sole Directive appropriate to deal with the travel expenses incurred for an employee who is assigned to a workplace away from their headquarters is the Travel Directive, there is no other mechanism for the grievor to be compensated for their additional expenses. The representative therefore requested that the NJC Government Travel Committee grant the grievance based on the merits.
Departmental Presentation
The Employer representative argued that the grievor was treated within the intent of the Directive, noting that the crux of the grievance is a permanent workplace change. As such, it falls outside the jurisdiction of the NJC, as the Travel Directive only pronounces on temporary workplace changes that occur within a headquarters area.
The representative noted that at no point was the grievor authorized for government travel. As per the key principles of the Travel Directive, subsections 1.1.1, 1.1.2. and 1.5.2, employees have a responsibility to consult and obtain authorization for government travel. While the grievor did consult, they were advised on June 10, 2016, that they were not on travel status.
With respect to the changes in the grievor’s assigned work locations, the representative noted the following definitions from the Travel Directive are relevant:
Headquarters area: for the purposes of this directive, spans an area of 16 kms from the assigned workplace using the most direct, safe and practical road.
Permanent or “Regular”: single permanent location determined by the employer at or from which an employee ordinarily performs the work of his or her position or reports to.
Temporary: the single location where an employee is temporarily assigned to perform the work of his or her position or reports to within the headquarters area.
The representative maintained that, with the above definitions in mind, this grievance relates to a change in the permanent or “regular” workplace, made as a result of the duty to accommodate process and the need to accommodate permanent medical limitations and restrictions. These changes cannot be described as temporary. The grievor reported to and carried out their duties at Unit G for a period of five years, followed by Unit H for a period of over four years, where they remain to this day. On both occasions, the headquarters area moved along with the grievor, as these were the regular work locations that they reported to and at which they carried out their duties.
The representative clarified that on this point, there is an inconsistency in the position advanced by the grievor and the bargaining agent. It was asserted at the prior level of the NJC grievance procedure that Unit G was the permanent workplace, and as such the grievor is currently on travel status outside the headquarters area while at Unit H. However, the permanent or regular workplace prior to the request for accommodation was in fact Unit F in downtown City C, Province M. The grievor and the bargaining agent appear to accept that a permanent workplace change and modification to the headquarters occurred when the grievor was moved from Unit F to Unit G, but this same rationale is rejected with respect to the move from Unit G to Unit H.
The representative noted that although the lack of a formal deployment has been cited as the catalyst for the travel status, this aspect was also missing from the original workplace change from Unit F to Unit G. No deployment occurred; it was carried out in accordance with the duty to accommodate process. The representative maintained that the grievor has, in actuality, occupied the same position since 2002.
The representative argued that what the grievor ultimately appears to take issue with is the mechanism used to facilitate the workplace change from Unit G to Unit H, that being a cost centre change rather than a formal deployment. A cost centre change is an organization and classification action that falls entirely within the purview of managerial discretion, and it does not trigger entitlements under the NJC Travel Directive.
The representative also noted that under the Travel Directive, there is no basis for paying an employee to travel to and from his or her regular workplace, as the normal commute to work is not deemed to be travel for government business.
Lastly, the representative noted several prior decisions from the NJC and the FPSLREB to support the Employer’s position (Taticek v. Treasury Board (Canada Border Services Agency) [2015 PSLREB 12], Wurdell v. Canadian Food Inspection Agency [2002 PSSRB 27], Hamilton and Hutchinson v. Treasury Board (Correctional Service of Canada) [2013 PSLRB 91], NJC 21.4.1093 (April 6, 2016)).
The representative reiterated that the grievance falls outside the jurisdiction of the NJC and should be dismissed for administrative reasons. Furthermore, in response to the merits of the grievance, the Employer representative maintained that the grievor was treated within the intent of the Travel Directive, and therefore the grievance should be denied, and the requested corrective measures should not be granted.
Executive Committee Decision
The Executive Committee considered the report of the Government Travel Committee and noted that it could not reach a consensus on whether the grievor was treated within the intent of the Travel Directive. The Executive Committee was unable to reach a consensus on this issue either. As such, the Executive Committee reached an impasse.