November 1, 1998
21.4.618
The employee grieved that while on travel status to location "B" during the period of November 1994 to December 95, he was not paid the meal allowance. The grievor requested that he be paid the meal allowance for this period.
The grievor's substantive position during the period in question was in location "A" and he was and still remains classified in a supervisory position. In September of 1993, he was approached by two of his managers and asked if he would be willing to fill in for another supervisor at location "B".
On September 28, 1993, the greivor advised management that he would be able to work at location "B" for a period of time, however, he would not be available until mid November due to other commitments. It was agreed that the period of his assignment would be from November 15, 1993 until March 31, 1994. It was also agreed that his hours of work would be from 0605 until 1405, with a half hour for lunch. The distance from location "A" to location "B" is approximately 35 kms - a driving time of approximately 45 minutes. As a result, it was agreed by management that due to the fact he would have to leave home at 05:20 a.m. and would return home at approximately 14:50 p.m., he would be paid for breakfast and lunch and as well, he was authorized to use his own car and claim the employer requested mileage rate. In addition, he was authorized to claim 1.5 hours of overtime for the time spent travelling to the plant, in accordance with his collective agreement.
This temporary assignment was confirmed in a memorandum dated November 10, 1993. This memorandum also confirms that the grievor is "eligible to claim for all travel expenses incurred as per the travel directive during this assignment." This assignment was subsequently extended by a memorandum of March 11, 1994 and again, it was made clear that he was entitled to claim expenses under the Travel Directive. During 1994 his assignment was extended by management for periods of 3-6 months and he continued to be paid expenses as per the Travel Directive.
In December 1994, the grievor was notified by management that his claim for November had been rejected by the Finance Section. This was due to the fact he had been assigned to the other plant (i.e. location "B") for more than four months, and therefore the grievor now came under the Short Term Relocation provisions and was only entitled to the employee-requested rate of mileage and no meals. The grievor met with management and indicated that he was not willing to continue working at location "B". During these discussions, after being assured that he was no longer entitled to claim mileage and meals and that everyone who was on "temporary assignments" would be treated in the same way, he agreed to continue the temporary assignment. However, management did offer to provide a fleet vehicle.
The assignment continued until January 1996, when the grievor returned to his substantive position. The grievor filed his grievance in January of 1997 after he indicated he became aware that other employees in similar situations were, in fact, in receipt of meal allowances. Given that this information only came to the grievor's attention at that time, the Department chose not to find the grievance untimely but rather, to deal with it on its merits.
The Bargaining Agent contended that management considered the circumstances surrounding the grievors temporary assignment, and established that he was entitled to claim for meals and that this entitlement never changed. The Bargaining Agent further contended that for the entire period in question, the grievor met the definition of "Travel Status" as defined in the Travel Directive.
The representative submitted that when the employer requested the grievor to fill in a location "B", not only was it determined that he met the definition of "travel status" and authorized the payment of mileage and two meals per day, but it was also determined that he was entitled under the collective agreement to claim overtime for the time travelled to and from location "B". The grievor continued to claim "travelling time" overtime throughout the whole period and was paid by the employer.
The representative also contended that nothing in the grievor's employment status changed from the initial determination in November 1993, until he returned to his substantive position in January 1996. She submitted to the committee that the grievor's substantive position remained at location "A" and that the grievor was on travel status of less than one day for the entire period that he reported to location "B".
The Bargaining Agent representative stated that she believed the grievor was misinformed in December of 1994, that he now fell under the Short Term Relocation Directive. She stated that given the grievor did not relocate or live in another community, as stipulated in section 5.9 of the Relocation Directive, he remained at his residence and commuted on a daily basis, and therefore could not be covered by this section. The representative added that when one considers the request from the employer's representative for an interpretation of the grievor's entitlement, it is noted that a relocation is more than 40 km and that as location "B" was 35 km from his home, this did not meet the definition of relocation.
The representative also made reference to the summary of the employer's facts of the grievance, which in her belief confirmed that the grievor was not on a "work assignment". She also asked that the committee disregard the references to the grievor being on temporary relocation status as this never occurred. The grievor agreed to a temporary assignment and he knew the financial implications, the greivor was entitled to claim mileage, meals and overtime.
The Bargaining Agent representative concluded by stating that the Guide to Administrating the Travel Directive, specifically the paragraph entitled "Workplace", directs the employer that to change an employee's workplace, the "new workplace should be formally designated in writing to prevent subsequent problems". The representative reiterated that the grievor was never informed in writing or verbally, that his worksite had been relocated, temporary or otherwise, to location "B".
The Departmental representative stated that the grievor never challenged the change of his workplace from location "A" to location "B" nor had he challenged the right of the employer to place him on short-term relocation. His grievance, rather, deals with what he perceives as the unequal treatment of himself vis-à-vis several other employees. The issue to be determined is whether the grievor's workplace was in fact changed. This alone, and not the proper or improper treatment of other employees, will determine his entitlements to a meal allowance. The representative also cited a Public Service Staff Relations Board (PSSRB) decision in the "Fuller" and "Fry" case (January 1987), which was similar to the grievance before the committee.
The Departmental representative continued by stating an employee is in travel status only if he is absent from his headquarters area - which is determined by the location of the workplace. The workplace is the location "at or from which the employee ordinarily performs the duties of his position." The representative confirmed that the grievor was assigned to duties at location "B" for almost 2 years. For the most part, the grievor reported to location "B" every day, except when on leave or on training course. For the period November 1993 to December 1995, the only location at which he performed the duties of his position was location "B".
The Departmental representative maintained that from the outset, the workplace of the grievor was changed to location "B". In recognition of the assistance that he was providing by agreeing to go work at location "B", the employer decided to exercise its discretion under part 5.9.5. of the Travel Directive and continue to pay meal and mileage expenses beyond the usual four month cut-off for the payment of travel expenses. The representative also stated that in December of 1994, the grievor's manager was advised that he would no longer be able to pay the meal and mileage expenses and that the provisions of short-term relocation should be formalized. The grievor was informed of this change. He did not complain nor did he grieve. At this point, the grievor was provided with a government vehicle.
The Departmental representative explained to the committee that to be eligible for travel expenses, an employee must be in travel status. To be in travel status is to be absent from the headquarters area. The headquarters area is an area surrounding the workplace having a radius of 16 km, centred on the workplace. It was argued that the grievor's workplace was location "B", given that it was where he performed the duties of his position between November 93 and December of 1995. There was no other location during this period of time that he worked out of. The grievor had nothing to do with location "A" during this period. The representative explained that since the grievor workplace had become location "B", his headquarters area was then an area surrounding location "B" having a radius of 16 km, centred on location "B". When the grievor travelled outside of this radius, he would have been in travel status and would have been eligible for travel expenses. The representative contended that the grievor's travel each day to location "B" was not a situation of travel status as he was merely going to his workplace.
The representative stated that the grievor contends that other employees in similar situations were paid the meal allowance. She explained to the committee that these employees were not in the same situation given that their workplaces were not transferred. Rather, these employees were on assignment, which were often for short duration and involved travel to a number of different locations on a daily basis. The representative stated that the grievor's work was entirely at location "B", it was not itinerant; it was always the same and at the same location.
The Executive Committee considered and agreed with the Government Travel Committee report which concluded that the grievor was not treated within the intent of the Travel Directive on the basis that, no official notification was provided to him indicating a change in headquarters area as evidenced in the Bargaining Agent's presentation.
The grievance was upheld.