Commuting Assistance

The employee grieved management's refusal to pay Commuting Assistance. The grievor maintains that commuting assistance should be reinstated for the following reasons: 16 kilometres radius did not provide adequate hospitalization, bilingual services or housing.

Preliminary issue of timeliness

The Bargaining Agent representative proceeded in providing its position on the timeliness issue. At the outset of his presentation, he noted that the Employer had, in two instances, raised the issue of timeliness. He began by providing arguments for the first instance concerning the referral of the grievance to the 3^rd level at the National Joint Council (NJC).

The Bargaining Agent representative explained that the appropriate timelines were followed. He noted that the grievance was filed at the first level on May 31, 1999 and that it was subsequently sent to the second level on the same day the Employer's response to the first level was received, June 21, 1999. He also noted that the grievance was sent to the 3^rd level on July 7, 1999, as per article 14 of the NJC By-Laws: "when no response was provided by the Employer, the employee may, within the next 10 days, (from when the response was supposed to be given) present the grievance to the final level. Following the chronology of the grievance outlined as above, the Bargaining Agent representative contended that the grievance was already at the final level of the NJC procedure when placed in abeyance.

The Bargaining Agent representative indicated that the Departmental Liaison Officer's "Second Level NJC Grievance Response" dated February 13, 2002, was in their view the wrong response since the grievance was already at the final level.

On October 15, 2004, the Bargaining Agent representative wrote to the NJC requesting that the grievance be scheduled for a hearing at the NJC because the "employer...now refuses to process this grievance to the NJC for a hearing claiming that the grievance is untimely."

On the basis of the above, the Bargaining Agent representative requested that, on the issue of timeliness in the first instance, the grievance should be deemed timely.

The Bargaining Agent representative explained that the second issue of timeliness concerns the initial time when the grievance was filed. He further explained that under arbitral law there is a difference between a "continuous grievance" and a "regular grievance". He stated that this grievance was continuous in nature because violations continued throughout time and therefore, a grievance could have been filed at any time. In support of this notion, he highlighted the explanation of "temporal limitations" found in the Canadian Labour Arbitration (2:1418) and cited: "...where the breach is a continuing offence, the rule applied in commercial arbitrations to the effect that the date of the submission to arbitration is the prospective cut-off date for assessing damages, was not to be applied, and that the assessment should be made up to the date of the hearing."

The Bargaining Agent representative added that the ongoing nature of the grievance and the ongoing correspondence between the grievor and the Employer demonstrated that the Employer was at all times aware of the grievance and the grievor's intention to maintain it.

In light of the above, the Bargaining Agent representative requested that, on the issue of timeliness in the second instance, the grievance should be deemed timely.

Merits of the case

The Bargaining Agent representative noted that the Employer had changed its position three times in the answers provided at the different levels of the grievance process.

According to the Terms of reference for the Joint Review Committee on Commuting Assistance, the Bargaining Agent representative mentioned that the parties were not bound by the results of the study. He noted that the criteria to determine whether the Commuting Assistance is to be provided are set by the Commuting Assistance Directive. The Bargaining Agent representative referred to the annex A of the grievance and the independent study on Suitable Residential Community, prepared for the Union, which concluded that there were six flaws found in the 2001 PWGSC study. He reported that there were three significant flaws: it underestimated the number of employees, it underestimated the number of residential units necessary to meet the CAD criteria and it neglected the lack of a French-language high school within 16 kilometres of the workplace.

On the first issue, he noted that the independent study showed an important discrepancy between the data on employees found in the PWGSC study and those collected in May 2003.

In regards to the second issue, he reported that the independent study demonstrated that 60.2% of the units for rent were either "one-bedroom" or "bachelor" style units or advertised as "rooms for students". He stated that this was clearly unsuitable housing.

Concerning the third issue, he mentioned that the availability of "Immersion" elementary, middle and secondary education is inadequate education for francophone students in New Brunswick. He also mentioned that a Supreme Court decision ruled that all laws of general applicability to the public have direct application to any collective bargaining agreement and in that sense, the right to a French education is to be implied.

The Bargaining Agent representative also reported three secondary flaws: the unreliability of the data collection methodology, an error of analysis that would annul the value of Appendix A and the adequacy of the public transportation had not been assessed.

For these reasons, the Bargaining Agent representative presented that the PWGSC study was incomplete and that the grievance should be upheld. He also requested that the Commuting Assistance be reinstated and the allowance be paid retroactively to the date it was discontinued: April 1, 1996.

Preliminary issue of timeliness

The Departmental representative reported on the first issue of timeliness that although this grievance was held in abeyance pending the outcome of the Joint Committee review on Commuting Assistance, once the review was completed, the grievance was responded to on February 13, 2002. The Departmental representative referred to article 20 of the grievor's collective agreement, that a grievance may be transmitted to the next level in the grievance procedure within ten (10) working days after a decision is rendered. She indicated that in this case the grievor or his representative did not make an attempt to transmit this grievance within the timelines outlined in article 20 and therefore the grievance should be deemed untimely.

Concerning the second issue of timeliness, the Departmental representative noted that the manager's response at the first level advised the grievor that the grievance was untimely as the collective agreement stated that he had 25 days to lodge a grievance against any action or inaction of management. She mentioned that following the report on Suitable Residential Community Study in 1995, management decided that employees working at location "A" and "B" were no longer entitled to Commuting Assistance and consequently, the payment of this allowance stopped in 1996.

The Departmental representative further reported that the grievor was informed on February 21, 1996 that the allowance would end on April 1, 1996. She submitted that the grievor had a 25-day period to lodge a grievance from the date when the grievor was notified of management's decision.

The Departmental representative presented that for the reasons stated above, it is the Department's position that this grievance is untimely and should be dismissed.

Merits of the case

The Departmental representative noted that all the mandatory criteria used for the 2001 PWGSC study were discussed and approved by the Joint Review Committee.

Concerning the issue of suitable housing, the Departmental representative noted that not all employees required a three-bedroom house and that the majority of employees could reside in the available residential housing.

She referred to the 2001 PWGSC study to demonstrate that there were adequate facilities and adequate road connections to the worksite. She noted that the health care and social services offered bilingual services. It was noted that the list of services did not provide detailed information on the level of bilingualism offered. She noted that the 1995 PWGSC study included information concerning the availability of "Immersion" elementary, middle and secondary education and that the Department considered that there were adequate educational facilities available.

For the above-noted reasons, the Departmental representative presented that the 1995 and the 2001 PWGSC studies demonstrated that sufficient housing existed within 16 km of the workplace and that a suitable residential community was identified as per the Commuting Assistance Directive definition and intent. The Departmental representative stated that the discontinuance of the Commuting Assistance was justified and requested that the grievance be dismissed.

The Executive Committee considered the report of the Government Travel Committee and was unable to reach consensus on the preliminary issue of timeliness or on the merits of the case. Therefore the Committee reached an impasse.