Workplace and Assignment – Local Travel Policy

The employees grieved the denial of their expense claims while they were on acting assignment to another work location. The grievors requested travel expenses as claimed.

Secretary's note: The Bargaining Agent made one presentation for the 7 grievances whereas the Department made two presentations: one for 21.4.624/629 and another one for 21.4.636/637/638/ 639/640.

It should also be noted that the Department raised the issue of timeliness. Prior to sending it to the Government Travel Committee, the NJC Executive Committee considered the question of timeliness and did not entertain it in view of the circumstances of the grievances.

In order for the grievors to accomplish their duties, they have to travel directly from either their place of work, or private residence. The grievances were filed following the Employer's refusal to reimburse travel claims as a result of a memo dated February 17, 1997 establishing January 1, 1996 as a cut-off for reimbursement of travel claims relating to temporary assignments.

The 7 grievances, two from Kingston, and five from Kitchener, related to the travelling distance between the employee's official port of call as opposed to their permanent place of work, and how employees are to be reimbursed for travel and time.

The Bargaining Agent representative first outlined elements that are common to all grievances and later distinguished elements particular to each individual.

Common Element – The Kitchener memo

The five Kitchener grievances were brought on as a result of a memo from the Director in Kitchener, dated February 17, 1997 which pertains to local travel, and determined that the Employer would reimburse local travel claims for the period of January 1, 1996 to February 17, 1997.

The grievances were all filed following the Employer's refusal of February 26, 1997 to reimburse travel claims as a result of the February 17, 1997 memo. The grievances challenged the Employer's unilateral decision to limit the retroactivity of travel payments to January 1, 1996. The grievors were not informed of a change in their permanent place of work.

Grievor A

Prior to May 2, 1994 the grievor's port of call was 166 Frederick Street, Kitchener. From May 2, 1994 to August 13, 1995 the grievor was assigned to 470 Weber in Waterloo. He was not informed this was to be his permanent work site. Subsequently, the grievor returned to 166 Frederick Street. As a result of the February 17, 1997 memo, the grievor filed a travel claim for the period May 2, 1994 to August 11, 1995, for a total of $1,360.80.

Grievor B

The elements in grievor B's case are similar to A, distinctions being dates, distance and overtime quantum. In this instance, grievor B's port of call is 470 Weber in Waterloo; he is assigned to 166 Frederick, Kitchener for the period between May 16 to October 3, 1994 (69 days).

Grievor C

(2 grievances)

Grievor C's port of call is Audit Section, 385 Fairway Road, Kitchener; from September 23 to December 31, 1994 (67 days), the grievor is on loan to Special Investigations at 166 Frederick Street, Kitchener.

The first grievance seeks reimbursement for 20 kms (round trip) for the period between September 23, 1994 to March 26, 1997. The second grievance covers the period between March 27 and April 2, 1997, but deals with overtime, i.e. 50 minutes of overtime for each day, for a total of 1,340 kms, plus 55.8 hours at time and one half.

Kingston

The grievances out of Kingston, grievors D and E, were the result of a chain reaction set off by the February 17, 1997 memo. Elements are similar for those raised previously by the Kitchener grievors.

Grievor D

Grievor D's port of call is 1440 Princess, Kingston. On July 2, 1996 he was on loan at 385 Princess, Kingston. The distance between the two addresses is 4.5 km one-way, and is greater than from the grievor's place of residence.

In September 1996, the facility at 1440 Princess was closed and the activities were moved to 993 Princess, while the grievor was still "loaned out" to 385 Princess. The distance between the latter addresses is such that only the minimum claim is sought for this period.

Grievor E

Grievance E is similar to that of grievor D. In November 1996 the grievor accepted an acting position. His port of call was 993 Princess, Kingston. The acting position was at 385 Princess, Kingston. On May 22, 1997 the grievor was informed that his place of work was to be 385 Princess. The grievor sought the applicable kilometric reimbursement for the period of November 1996 to May 22, 1997, i.e. $252.30. No overtime was sought.

The Bargaining Agent representative maintained that the issue in these matters was the grievors' workplaces. The employees were required to work at locations other than their normal workplace, although of short duration. The Employer made a determination to correct errors back to January 1, 1996. The Kitchener grievors considered the date of January 1, 1996 as arbitrary and only became aware of the Employer's violation of their rights under the Travel Directive, following the issuance of the February 17, 1997 memo.

Concerning the Kingston grievances, the grievors sought a kilometric adjustment, which is within the Employer's self imposed "chronological" boundaries, whereas the Kitchener employees hold that the locations at which they were required to work were "temporary" locations, and because these locations were outside the normally defined headquarters area. In the instance of both Kitchener and Kingston employees, the Travel Directive stipulates that there are a number of elements that must be satisfied in order to define a workplace.

"Workplace is the location at or from which an employee ordinarily performs the duties of his or her position...".

1)"... And where other administrative matters pertaining to the employee's employment are conducted".

The Bargaining Agent representative summarized his presentation by stating that given the number of different work locations the grievors were required to work for such short periods of time, they were not treated within the intent of the Travel Directive with respect to travel within and outside the headquarters area. All grievors filed within 25 days of learning of the existence of the February 17, 1997 memo. In this sense, the grievances are timely, and set aside any administrative deadlines in the directive, such as section 1.22 which indicates that claims are to be made no later than 30 days after a fiscal year.

Grievances 21.4.624/629

The Departmental representative stated that the issue before this committee was to determine if the grievors were entitled to travel expenses while they were on acting assignment to another work location. The grievors alleged that the Employer was not abiding by the NJC Travel Directive, paragraph 7.3.1.

Since August 26, 1996, the Kingston Services Office was comprised of two (2) buildings located at 993 and 385 Princess Street. The distance between these 2 locations was approximately 3 km one way.

The Departmental representative maintained that in this case three major issues have to be looked at by the committee:

1.The workplace;

2.The timeliness;

3.The period for which the Department would be liable, should the grievors be entitled to travel expenses.

1.Workplace

Referring to the details of the grievance, the Representative stated that article 7.3.1 of the Travel Directive states that "when an employee is authorized to proceed on government business travel from home to a destination within the headquarters area other than the workplace...". He also mentioned that the NJC Directive defines government business travel as "travel authorized by the Employer, and is used in reference to the circumstances under which the expenses prescribed in this directive may be or reimbursed from public funds".

The NJC Travel Directive also defines workplace as: "the location at or from which an employee ordinarily performs the duties of this or her position and, in the case of an employee whose duties are of an itinerant nature, the actual building to which the employee returns to prepare and/or submit reports, etc., and where other administrative matters pertaining to the employee's employment are conducted".

In light of the above definition and the under-mentioned facts, he wanted to demonstrate that the grievors were not entitled to claim travel expenses for travelling they have not done, between their substantive positions located at 993 Princess Street and their acting positions workplace located at 385 Princess Street, Kingston.

• Since April 1995, 385 Princess Street was the only location in Kingston, with a Special Investigation Area. Investigators must perform their office work within this secure area for obvious security reasons. They could not, for security reasons, have performed their duties in any other location.
• For all the period for which the grievors claim reimbursement for travel expenses, they were performing the duties of their acting position at 385 Princess Street.
• Administrative matters pertaining to the employee's employment were conducted at 385 Princess Street.
• The grievors were given a complete workstation in the Investigation Area, 385 Princess, including a desk, file cabinet, telephone, computer, office supplies.
• While on acting assignment, the grievors were not required to perform any of their substantive position duties. The grievors' desks were occupied by other employees at their substantive position location at 993 Princess. They brought their personal effects to 385 Princess, their workplace since the beginning of their assignment.
• The assignment opportunity notice stated that "Special Investigation is currently seeking an employee for an assignment for a period of up to two years". The employees knew that the work location was 385 Princess.
• While on acting assignment, both grievors reported to their manager who was and still is located at 385 Princess.
• On the travel expense claim signed by grievor D on May 6, 1997, the grievor requested that the payment be sent to 385 Princess. On the three travel expense claims signed by grievor E, the grievor requested that the cheque be sent to 385 Princess Street.
• On the grievance presentation form, grievor D specifies that the address for contact is 385 Princess.

Although the grievors knew that their workplace was located at 385 Princess, management officially informed them of their workplace in order to make sure there was no misunderstanding:

• The letters of offer dated October 25, 1996, March 21, 1997, May 9, 1997, September 17, 1997, December 10, 1997, March 2, 1998, September 21, 1998 and September 28, 1998, signed by grievor D, were all addressed to 385 Princess. The letters of offer dated March 21, 1997, May 8, 1997, and September 17, 1997, signed by grievor E, were all addressed to 385 Princess.
• The grievors were informed in writing that their workplace, while in acting position, was at 385 Princess Street. The memorandum addressed to the grievors on May 22, 1997 stated "to make it perfectly clear, 385 Princess Street is considered to be your workplace location while working in the Special Investigation Section.
• Grievor D was informed in writing on his letter of offer confirming the extension of his acting appointments on September 17, 1997, December 10, 1997, March 31, 1998 and September 21, 1998 that his workplace was 385 Princess. Grievor E was informed in writing on his letter of offer confirming the extension of his acting appointment on September 17, 1997 that his workplace was 385 Princess Street.

The Departmental representative further referred to decisions rendered by the NJC Executive Committee in cases that were similar to grievors D and E and who were not entitled to travel expenses and also referred to decisions rendered by adjudicators and supporting management.

Article 1.1.4 of the Travel Directive states that "It is emphasized that, as a general rule, employees are expected to present themselves at their workplace on their own time and at their own expense. The cost of transportation between an employee's principal residence and workplace, therefore, is not generally reimbursed".

Section 1.2.2 of the Travel Directive specifies that an employee must "submit claims that do not involve an advance as soon after completion of travel as possible but not later that 30 calendar days after the end of the fiscal year in which the travel occurred. Claims received after that date will only be reimbursed when properly substantiated by the employee and when the employer is in the opinion that the delay was justified".

In grievance 21.4.411, the NJC Executive Committee rendered the decision that "while the claim may be valid, there is an absence of acceptable reasons to justify the failure to submit the claims within the prescribed or reasonable limit".

2.Timeliness

The Departmental representative maintained that the grievances were untimely.

The grievors submitted their claims later than 30 calendar days after the end of the fiscal year. The grievors never explained why they took over six months to submit their travel expenses claims. Therefore, the only travel portion the employees could claim is after April 1, 1997.

3.Liability of Department

Should the grievances be upheld, the Departmental representative maintained that the remedy should be limited to 26 working days prior to the filing of the grievances.

The Departmental representative concluded by stating that that the NJC Committee should evaluate the grievances on their merit instead of "in the light" of other management decisions. As well, the Representative submitted that the Committee's recommendation regarding a grievance filed by two employees from the Northern Ontario Region, based on a misinterpretation of a few managers of the Southern Ontario Region, would impact on the whole Northern Region and then on all Revenue Canada Regions and finally on every Federal Government Department.

Grievances 21.4.629/637/638/639/640

The Departmental representative maintained that the Committee should consider three major issues in these cases:

1)Management's decision to establish January 1, 1996, as a cut-off for reimbursement of travel claims relating to temporary assignments;

2)Whether the grievors assignments were considered to be a permanent change of work location;

3)The timeliness of the grievances.

All grievors were on assignments within their headquarters area dating back to 1994 and believed that they should be reimbursed in accordance with the Travel Directive. There was no additional cost to the employees by accepting the assignments. Reimbursement of these expenses would result in financial gain.

1.Management's decision to establish January 1, 1996, as a cut-off for reimbursement of travel claims relating to temporary assignments:

The Departmental representative stated that what prompted management to commence a review of local practices was a Toronto – Revenue Canada adjudication decision (Vijh) issued on December 4, 1995. During this period of review, Management received erroneous advice that all employees on assignments of a temporary nature were subject to the provisions of the Travel Directive. Based on this advice, Management changed their practice and issued a memo to all staff indicating that they were prepared to consider claims for local travel expenses from January 1, 1996.

With regards to the Vijh decision, the NJC Executive Committee had upheld the grievance. It was not intended that this decision re-write the Travel Directive. Therefore, to advise management that any assignment of a temporary period fell within the intent of the Travel Directive, was inaccurate.

As per Article 1.2.2 (f) of the Directive, the Department has the discretion to allow payment of claims beyond the 30 calendar days after the end of the same fiscal year the travel occurred. In this case, management maintained that it had used its discretion in a manner that was fair and equitable for all employees. They selected their retroactive date to coincide with the point in time the review of their practices commenced.

2.Whether the grievors assignments were considered to be a permanent change of work location:

The Departmental representative cited the Fuller and Fryer case, the decision dictated that there can only be one workplace. Management advised the employees in 1994 that their workplace was changed for the duration of the assignments and this constituted a permanent change in their workplace. Management does have the right to change work locations and by so doing, the provision of the Travel Directive does not apply.

Management believed that the employees were not entitled to travel expenses reimbursement as the assignments were for a period of time that ranged from 6 months to two years and employees workplaces were changed for the duration of the assignments.

The Travel Directive does not identify a duration of time in which an assignment qualifies for reimbursement. Rather, they leave it to management to determine whether or not a work location of an employee should be changed.

3.Timeliness:

These grievances were filed in 1997, well beyond the period allowed for by their collective agreement. The decision to deny travel expenses was made in 1994. When management considered travel claims from employees on assignment as of January 1996, this did not provide a new opportunity to grieve a previous decision.

It is important to note that one of the grievors was still on assignment as of January 1996. In this instance, he could claim that this is a continuing grievance and the argument of timeliness would not apply to him.

The Departmental representative concluded that, according to the Travel Directive, the grievors were not entitled to travel expenses reimbursement.

The Executive Committee considered the Government Travel Committee report and could come to no decision as to the intent of the Travel Directive. Therefore, the Committee reached an impasse.