Daigneault v. Treasury Board (Correctional Service of Canada)
Public Service Labour Relations and Employment Board Act and Public Service Labour Relations Act
- Date: 20170419
- File: 566-02-8886
- Citation: 2017 PSLREB 38
Before a panel of the Public Service Labour Relations and Employment Board
(Correctional Service of Canada)
Daigneault v. Treasury Board (Correctional Service of Canada)
In the matter of an individual grievance referred to adjudication
- Michael F. McNamara, a panel of the Public Service Labour Relations and Employment Board
- For the Grievor:
- Sheryl Ferguson, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN
- For the Employer:
- Christine Langill, counsel
June 2 and 3, 2015.
REASONS FOR DECISION
I. Grievance referred to adjudication
1 I am seized with a grievance filed by Matt Daigneault (“the grievor”) on July 3, 2011 against the decision of Correctional Service of Canada, the employer not to reimburse him the costs of moving his household goods and effects (“HG&E”) as a result of his deployment to the Warkworth Institution in Campbellford, Ontario.
2 The grievance presentation form sets out the grievance statement and the corrective action sought in the following terms:
DETAILS OF GRIEVANCE
I grieve that I was not able to have my household goods and effects shipped by the moving company assigned to me.
CORRECTIVE ACTION REQUESTED
1. Union representation at all levels.
2. I would like to be compensated for the movers that I ended up using which only cost me $1200.00.
3. For employee’s [sic] in the future to be able to choose their own movers when they fall under the $5000.00 cap. In my case I called all the movers in Kingston for quotes and then asked for movers through the relocation policy. When I was assigned a mover this mover gave me a quote right away of $7000.00 with no questions asked and it sounded like it was already assumed I would not use them because of the price. Yet when I had called the exact same moving company the week before they had quoted me $3500.00 for my move after asking a lot of questions. It was only doubled when CSC assigned them to me. Even the Relocation Advisor admits that this does not make sense but states that his hands are tied because of the policy of having these movers assigned to you.
4. If the moving company is being compensated when they are not used, I would like this practice stopped as well since it provides incentive for the moving company to raise the price above what is affordable so that you will refuse.
5. The Relocation Policy to be made in a simple format without the necessity of a Cx [sic] to become a subject matter expert on it in order to use it.
6. The Relocation Company (BROOKFIELD) have more than one phone interview with you instead of ignoring messages and being impossible to reach after the first interview.
and all other rights that I have under the collective agreement, as well as all real, moral or exemplary damages, to be applied retroactively with legal interest and with prejudice to other acquired rights.
3 The grievance was denied at both applicable levels of the departmental grievance procedure. The reply at the second and final level reads as follows:
In accordance with the NJC Relocation Directive, an employee approved for an employee-requested relocation is entitled to a sum of up to $5,000 for their relocation expenses. Additionally, the NJC Relocation Directiveinstructs that the department is to arrange for the shipment of the relocating employee’s HG&E (Household Goods and Effects) through Central Removal Services (CRS). Correctional Service Canada (CSC) made such an arrangement for you, however, you directed that it be cancelled. You then went ahead and made your own moving arrangements, even though you were aware that you had to use CRS assigned mover in order to receive reimbursement of your moving expenses.
Despite your contentions to the contrary, you could have had your HG&E shipped by the moving company assigned to you. However, you opted not to do so, thereby forfeiting any entitlement to reimbursement of moving expenses that you may have had under the NJC Relocation Directive for the movement of your HG&E.
The NJC Relocation Directive was developed in partnership by employer and bargaining agent representatives at the National Joint Council and its provisions form part of the collective agreement, in this case the Correctional Services (CX) collective agreement. CSC has no authority to authorize or make payment of your relocation expenses related to the movement of your HG&E. Furthermore, the department has no authority to introduce changes to the NJC Relocation Directive, nor to the agreement between the federal government and BGRS, the Contracted Relocation Service Provider (CRSP) for the Public Service.
Consequently, your grievance and requested corrective action are denied.
4 As the grievance relates to the application of a National Joint Council (NJC) directive, the final level of the grievance procedure is the NJC’s Executive Committee. After hearing submissions from the parties’ representatives, the Executive Committee could not reach a consensus on the outcome of the grievance and ended in an impasse, which left the grievance unresolved, as set out in the Executive Committee’s “Record of Decision” dated July 12, 2013.
5 The collective agreement between the grievor’s bargaining agent and the employer (expiry date: 31 May 2010) incorporates NJC agreements as follows:
41.01 Agreements concluded by the National Joint Council (NJC) of the Public Service on items which may be included in a collective agreement, and which the parties to this Agreement have endorsed after December 6, 1978 will form part of this Agreement, subject to the Public Service Labour Relations Act(PSLRA) and any legislation by Parliament that has been or may be, as the case may be, established pursuant to any Act specified in section 113(b) of the PSLRA.
6 The grievance raises the application of Part XII of the NJC’s Relocation Directive (“the Directive”), entitled “Employee-requested Relocation”, specifically section 12.1, which reads as follows:
12.1 Employee-requested Relocation
12.1.1 The Departmental National Coordinator shall ensure that:
- employees are provided with counselling and written confirmation on the applicable provisions of this Directive; and
- copies of all correspondence are retained on the employee’s relocation file.
12.1.2 An employee-requested transfer that results in an authorized relocation to a position at the appropriate group and level which is vacant on arrival at the new place of duty shall be deemed to be an employer-requested relocation subject to the following:
- The relocated employee shall be reimbursed relocation expenses within the limits prescribed in this Directive, unless the deputy head or senior delegated officer provides written certification that, had the vacant position not been filled as a result of an employee-requested transfer, it would have been filled through normal staffing procedures without relocation expenses being incurred.
- When a position is so certified, the employee is entitled to:
- the sum of up to five thousand dollars ($5,000.00) in their Customized Fund;
- the Core and Personalized Funds do not apply;
- unused or remaining monies shall be returned to the Receiver General of Canada/department and are not payable to the employee as a cash-payout. [sic]; and
- a contract with a relocation services supplier who will provide the employee with professional assistance such as counselling on the relocation benefits available, guidance on accommodation at the new location and expense management.
12.1.3 Relocation expenses include but are not limited to HHT, DHIT, Interim Accommodation, Travel to new Location, Movement of HG&E, Rental of Vehicle, Child Care and Pet Care.
- There is no assistance for disposal or acquisition of a principal residence, including rental related expenses.
12.1.4 Employees may claim a Non-Accountable Incidental Expense Allowance in the amount of $650 as part of the $5,000.00 allocation of Customized funds.
- Receipts are not required however they should be retained by the employee in the event of a tax audit.
- The employee must sign a statement certifying that the expenses were incurred.
12.1.5 The department is to arrange for the shipment of the relocating employee’s HG&E through CRS.
12.1.6 All commercial travel arrangements are to be made through the federal government’s contracted travel services. Employees are governed by the NJC Travel Directive.
7 The grievance was referred to adjudication and received at the former Public Service Labour Relations Board (PSLRB) on August 13, 2013.
8 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.
9 Furthermore, pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.
II. Summary of the facts
10 The facts that gave rise to the present grievance are essentially uncontested. At the material times, the grievor was employed with the Correctional Service of Canada at the Kingston Penitentiary in Kingston, Ontario, as a correctional officer (classified at the CX-01 group and level). He requested and obtained a deployment to Warkworth Institution. The appointment in his new position became effective on May 30, 2011.
11 Once the grievor received the letter of offerand the relocation file was opened, a particular moving company was assigned to his case. The company in question provided a quote of $7000 for the grievor’s move of his HG&E. During the course of his previous enquiries, the same company had quoted him $3500.
12 The grievor testified that he familiarized himself with the Directive, to understand his entitlements with respect to his upcoming move. He stated that he spoke to John Futtit, RCFM and AS, Ontario Region, as well as to other persons with the employer and that he obtained only vague responses. He had heard that other correctional officers had experienced problems with using a moving company provided by Central Removal Services (CRS), which resulted in employees having to pay money over and above the allocated $5000 provided for in the Directive. The grievor wanted to avoid being placed in such a situation.
13 The grievor consulted Brookfield Global Relocation Services (“Brookfield”), the company retained by the federal government to coordinate all relocations of public servants, and an expert for the employer, before ultimately cancelling the moving arrangements that the employer had made. He directly contracted another moving company, Rick Stevenson Moving and Cartage, and paid $1887.10 for its services. That company was not among the companies approved by the CRS or Treasury Board. It had undergone no security screening and had no clearance. The grievor did not recall whether the company charged the taxes. He submitted his claim for a reimbursement of the amount paid to that company, but the employer refused to pay it, citing the facts that he had cancelled the arrangements his Department had made with the moving company approved by the federal government, pursuant to section 12.1 of the Directive, and that he had made his own arrangements. As a result, there was no legal authority under that section to reimburse the expenses that he had incurred for moving his HG&E.
14 The employer called Leslie Jones to testify. At the material times, he was a senior policy and program analyst with the Treasury Board Secretariat. He explained that the federal government has contracted with Brookfield to look after the large number of relocations of federal public servants. Specific moving companies have been selected through the federal government’s contracting process, including gathering appropriate requests for proposals from qualified companies, subjecting them to security screenings, ensuring they have adequate insurance coverage, and so on. They are well established and provide high-quality professional services. They offer favourable rates as a result of the very large value of the contracts, and such arrangements are seen as more cost-efficient overall. They must conform to contractual obligations when providing their services to the federal government and are responsible for any damages that may occur in the course of moving household effects, thus constituting a best value for Canadian taxpayers.
III. Summary of the arguments
A. For the bargaining agent
15 The grievor’s representative indicated that the grievor’s decision to make alternate arrangements was in line with section 1.2.1 of the Directive, which states that the aim shall be to relocate an employee in the most efficient fashion and at the most reasonable cost to the public while having a minimum detrimental effecton the employee and Departmental operations.
16 The grievor’s representative submitted that to accept what is tantamount to price gouging would not be in keeping with finding the most reasonable cost.
17 The grievor’s representative stated that it is not the Directive’s intent that an employee be placed in a circumstance in which the cost of his or her relocation exceeds his or her entitlements under the Directive. Had the grievor used the assigned company, the cost of moving his HG&E would have exceeded the $5000 allotted under the Directive. He would have been out of pocket $2000 as a result in addition to all the other relocation-related expenses that would have fallen outside the entitlement.
18 The grievor’s representative referred to section 15.1.2 of the NJC’s By-Laws, which stipulates that all grievances presented under the NJC grievance procedure are to be decided on the basis of the intent of the directive or policy at issue. She further indicated that section 1.2.4 of the Directive stipulates that relocation expenses must be clearly reasonable and justifiable and that the provisions shall not open the way for underwriting extravagances. The reimbursement the grievor seeks does not constitute an extravagance, while the fee quoted by the Brookfield-assigned moving company was extravagant.
19 The grievor’s representative referred to section 1.2.1 of the Directive, which sets out the Directive’s purpose and scope, which are to relocate an employee at the most reasonable cost to the public while having a minimum detrimental effect on the employee and his or her family and departmental operations. The grievor’s desired corrective action, which is to be reimbursed the costs that he actually incurred for moving his personal goods, falls squarely under the Directive’s purpose.
20 The grievor’s representative referred to Brown and Beatty, Collective Agreement Arbitration, 4th Ed. at para. 4:2110 (at 4-45); Craig v. Treasury Board (Correctional Service of Canada),2010 PSLRB 113; and Skoulas v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2014 PSLRB 80.
21 The grievor’s representative requested that I allow the grievance.
B. For the employer
22 Counsel for the employer indicated that before cancelling the move order on March 9, 2011, a departmental contact and a Brookfield representative informed the grievor that to receive reimbursement for the HG&E relocation, the relocation had to be made through CRS, as any other method would forfeit the benefit. Counsel noted that section 12.1.5 of the Directive clearly directs that shipping the relocating employee’s HG&E has to be done through the federal government’s CRS.
23 Counsel for the employer submitted that that requirement is clear, does not require any interpretation, and should simply be applied as worded. The onus rested on the grievor to demonstrate a violation of that requirement, which he failed to do; see Professional Institute of the Public Service of Canada v. National Research Council of Canada, 2013 PSLRB 88; Outingdyke v. Treasury Board (Solicitor General Canada - Correctional Service,2003 PSSRB 51; Arsenault v. Parks Canada Agency, 2008 PSLRB 17; Cardinal Transportation British Columbia Inc. v. Canadian Union of Public Employees, Local 561 (1997), 62 L.A.C. (4th) 230; and Taurus Site Services Inc. v. United Brotherhood of Carpenters and Joiners of America, Local 1325, A.G.A.A. No. 47 (QL).
24 Counsel for the employer submitted further that the grievor was not a contracting authority with the delegated power to enter into contracts involving the disbursement of public moneys. Rick Stevenson Moving and Cartage does not have a contract with the federal government. The Financial Administration Act (R.S.C., 1985, c. F-11),the Government Contracts Regulations (SOR/87-402),and the employer’s Contracting Policy provide for a rigorous process to be followed before public funds are engaged. The grievor had no legal authority to contract with a company not approved by the federal government and to claim the reimbursement of that expense. He was fully aware that the move had to be arranged by CRS, which was a condition attached to his entitlement to be reimbursed his costs up to the $5000 limit set out in section 12.1.2 of the Directive. The Department made the appropriate arrangements as per the Directive. However, the grievor elected not to use the arranged service. It was his choice not to have the relocation completed through CRS.
25 Finally, counsel for the employer submitted that by choosing to hire movers, the grievor elected to assume full responsibility for the costs associated with the movement of his HG&E, and she urged me to deny the grievance.
26 There is no question that the grievor’s relocation to a position at Warkworth Institution was an “employee-requested relocation” within the meaning of the Directive. Consequently, Part XII of the Directive applied to his relocation.
27 Section 12.1.2 of the Directive explicitly sets out an employee’s entitlements for a self-requested relocation and the conditions for such entitlements. Mr. Daigneault was provided with all the necessary information about the relocation process and what he was entitled to under the Directive. While he might have had reasons to fear that the total costs of moving his HG&E could be greater than the maximum amount allocated under section 12.1.5, he regrettably opted to undertake his own moving arrangements. The evidence presented at the hearing was clear that he knew that doing so would mean forfeiting his entitlement to the costs of moving his HG&E. His choice to cancel the moving arrangements with the company that CRS provided per section 12.1.5 was fully informed and was not triggered by false or misleading representations by the employer.
28 My task is to apply sections 12.1.2 and 12.1.5 of the Directive, which is incorporated by reference in the collective agreement. If the wording is clear, there is no need for interpretation and no need to revert to its purpose and objective clauses. While the parties might have approached the matter differently in their deliberations at the NJC Executive Committee level, as reflected in section 15.1.2 of the By-Laws cited by the grievor, I am constrained as a quasi-judicial decision maker to follow generally accepted rules of the legal interpretation of collective agreements.
29 I find support for this statement in Craig, in which the adjudicator applied the terms of the Directive strictly, as they should be applied. When searching for the parties’ intention with respect to a particular provision in the agreement, I am to assume that the language is to be viewed in its ordinary sense, unless doing so leads to an absurdity or inconsistency with the rest of the agreement. When there is no ambiguity or lack of clarity in meaning, effect must be given to the provision as worded, despite that the result may be unfair (see Professional Institute of the Public Service of Canada).
30 In Skoulas, cited by the grievor, the adjudicator allowed the grievance on the grounds that the employer had misinterpreted the notion of “… annual salary effective on the date of appointment …”. The issue was whether a transfer allowance (two weeks’ salary) paid at the time of the employee’s relocation ought to be adjusted because of salary adjustments made subsequently through collective bargaining and made retroactive to a date before the relocation.
31 The adjudicator allowed the grievance on the basis of his interpretation that “effective salary” must be read to include salary adjustments incorporated into the collective agreement subsequently and made retroactive to a date earlier than the relocation date. The adjudicator found that this interpretation was the only one consistent with the general operation of the collective agreement and the collective bargaining process. There is no such issue arising out of the wording of section 12.1 of the Directive. It is trite law to state that I am not authorized to modify the collective agreement in carrying out my task. See s. 229 of the PSLRA, which states as follows: “An adjudicator’s decision … may not have the effect of requiring the amendment of a collective agreement or an arbitral award.”
32 The Directive is clear: the Department is to arrange for shipping the relocating employee’s HG&E through CRS (see section 12.1.5), and it is to be carried out by one of the moving companies approved by the federal government that have standing offer contracts. There are legitimate business reasons for the employer to provide such a requirement. I agree with the adjudicator in Outingdyke at para. 50, as follows:“The Relocation Directive is a comprehensive document with very specific categories of reimbursable expenses and it is not open to an adjudicator to expand the categories and include additional expenses.”
33 The instructions and information provided to the grievor as to his entitlements were clear. On a balance of probabilities, I am persuaded that he was made aware of this requirement and of the consequences of not following the process. He decided to make his own moving arrangements to avoid the possibility of having to reimburse the employer amounts in excess of the maximum figure set out in section 12.1.2 of the Directive. While I sympathize with him and acknowledge the fact that the overall costs of moving his HG&E were less that they would have been had he used the moving company chosen by CRS based on the quotes that were provided to him, it is for the parties to address these types of situations in the course of periodic reviews of the Directive.
34 For all those reasons, I am persuaded that allowing the grievance would ignore a substantive condition for the entitlement provided in the Directive and effectively modify its terms, which I cannot do.
35 For all of the above reasons, the Board makes the following order:
36 The grievance is denied.
April 19, 2017.
Michael F. McNamara,
a panel of the Public Service Labour Relations and Employment Board