Travel Directive – Workplace Change

Background

The grievors are employees whose permanent work location is Location A located in Area G. In 2008, Location B, located approximately 30 kilometres from Location A, but still within Area G, opened. Between 2008 and 2012, due to operational requirements, additional staff was needed at Location B. As a result, the Employer indicated that it canvassed employees at Location A for volunteers to accept an assignment to Location B.

The grievors in question accepted assignments for various lengths of time between 2008 and 2012. In 2008 and 2009, the assignment agreements stated that employees would not be on travel status for the duration of the assignment. From 2010 onwards no such language was included; however, management stated that the grievors were informed of their workplace change by email 30 days prior to their assignments, and those that were not, were entitled to claim up to 60 days in travel expenses at the outset of their assignment.

In 2012, the grievors submitted travel claims dating back to 2008 for the period of their assignments to Location B. These claims were denied by the Employer.

Grievance

The grievors are grieving management’s violation of the National Joint Council Travel Directive (the Directive) by failing to appropriately compensate them while on authorized government travel.

Bargaining Agent Presentation

The Bargaining Agent representative is of the opinion that the grievors were not treated within the intent of the Directive. The representative noted that the grievors were assigned to Location B by the Employer, which was outside of the 16 kilometres headquarters area. Consequently, the representative argued that when an employee’s workplace is changed temporarily and outside a 16 kilometres distance from his/her headquarters area, section 3.2 of the Directive therefore applies.

As outlined in the NJC Government Travel Communiqué, Travel Directive - April 1, 2008 - Points of Clarification on Specific Issues with Respect to Intent, clarification is provided regarding when an employee may be required by the Employer to change his/her workplace. It is explained that when the employee will be on travel status for the duration of this change, except if the new workplace is within the existing headquarters area of the employee; the employee has been given 30 days’ notice of the change; and, the duration of the change is at least 30 days. All of the conditions outlined above must be met for the exception to be valid.

The representative argued that in the grievance at hand, the Employer stated that it issued a call letter, by way of an email, seeking interest amongst the employees as to who was interested in working at Location B. The interest expressed by the employees was labelled as “expressions of interest” by the Employer, in other words, as employee-initiated requests for a temporary change in work location. The requests were taken into consideration by the Employer, who then approved them on a case-by-case basis. The representative argued that this process was done to circumvent the application of the Directive. The representative maintained that the grievors were in fact on travel status, as the actions of the Employer constituted a constructive assignment. Consequently, the grievors were entitled to the benefits under the Directive.

The representative reasoned that the Employer required employees to report to Location B; the grievors did not decide to report to a new work location on their own accord. Had no employee expressed interest, the Employer would have had to order, or require, employees to change their work locations to report to Location B. Furthermore, the Bargaining Agent representative noted that the Employer mischaracterized the circumstances by purporting that the employees had requested to go work at a new work location, when in fact it was the Employer who requested of the employees who amongst them was interested in working at Location B.

The representative argued that to not be considered on travel status, as per the 2008 NJC Government Travel Committee Communiqué, Location B would have had to be within a 16-kilometre headquarters area of the employees, which it was not. Therefore, the 30-day requirement for the Employer to give notice becomes irrelevant, as the employees were on travel status. As such, the employees believed travel had been preauthorized, with the travel blanket authority as the preauthorization that satisfied this requirement. Consequently, when on travel status, subsections 3.2.9 Meals and 3.2.11 Transportation (Mileage) apply. The representative noted various NJC Executive Committee decisions (21.4.965, 21.4.967), which support the calculation of travel distance be from the employee’s home to the new work location.

In conclusion, with respect to the above, the Bargaining Agent representative maintained that the grievors were not treated within the intent of the Directive, and that the corrective measures be awarded.

Departmental Presentation

The Employer representative argued that the grievors were treated within the intent of the Directive. Subsections 1.1.1, 1.1.2, and 1.5.1 of the Directive specify that the Employer is responsible for determining if travel is necessary, and if so, authorizing it in advance. At no point did management determine that travel was necessary or authorized as part of these assignments. It was made clear to the grievors through the agreements, notification emails, and discussions that that they were not on government travel and their workplace was changed.

The representative referenced subsection 1.5.2 of the Directive, which states that employees are responsible for consulting, obtaining authorization to travel, and submitting travel expense claims with necessary supporting documentation at the earliest opportunity. The representative noted that in this case, any consultations undertaken by the grievors indicated that their workplace was changed and that they were not on government travel. They did not request and receive the authorization to travel in advance, nor were their travel claims timely. The representative noted that the Employer is cognisant that minor delays in filing claims can perhaps be justified if there are extenuating circumstances, however, the delays in this grievance are so significant that they simply cannot be justified, with most claims dating back several years. This places the Employer in a difficult position as a lack of document retention combined with the loss of corporate knowledge make it challenging to confirm details. The representative maintained that the timeliness of the claims is noteworthy, as Region G required claims to be filed at the end the month during which the costs were incurred. Reminders that outstanding travel claims are due at the end of each fiscal year were also sent to all staff, yet despite these reminders, the grievors did not file claims until well after their assignments began.

The representative submitted that an important point of discussion during the grievance process was the location of the headquarters area, noting the distinction between permanent and temporary headquarters. In this situation, the representative noted that the permanent (regular) workplace for these assignments was Location B, as that was the single location determined by the Employer at which the grievors ordinarily performed their duties and reported to. The representative argued that the headquarters was therefore moved for the duration of the assignments. The definition of a temporary workplace is not applicable as this refers to temporary changes that occur within a headquarters area. It does not apply when a staffing actions occur (e.g. assignment, secondment, acting). When an employee is on an assignment for which they volunteered or actively sought out, their new and regular workplace dictates their headquarters.

The representative noted that under the 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. Moreover, upon receipt of the travel claims, the Employer verified the distances between the grievors’ residences and the two workplaces. This exercise found that fifteen (15) of the twenty (20) grievors resided closer to Location B, meaning the majority were actively enjoying the benefits of a reduced commuting time and cost. The representative submitted that providing them with a reimbursement under this set of circumstances, when they have not incurred reasonable expenses and are not out-of-pocket, opens the way for personal gain, contrary to the intent of the Directive. The representative further noted that prior travel claims using Location B as the headquarters area had been submitted to, and approved by, management. The representative argued that the travel claims in the current grievance would be in direct conflict, and it could lead to the grievors being reimbursed based on two different headquarters being in effect at the same time.

Lastly, the representative highlighted prior decisions from the NJC (21.4.672, 997, 998, 1082, 1061) and the FPSLREB (2013 PSLRB 91, 2013 PSLRB 97) to support the Employer’s position.

In light of the above, the departmental representative concluded that grievors were treated within the intent of the Directive, and as such 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 grievors were 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.