Ontario arbitrator upholds double payments for travel time that coincide with client time

An Ontario healthcare employer breached its collective agreement when it stopped paying for employee travel time that overlapped with client visit time, an arbitrator has ruled.

The Victorian Order of Nurses for Canada (VON) provides personal support workers (PSWs) and health support workers (HSWs) for home visits to clients in Thunder Bay, Chatham-Kent, Sarnia, and Peel Region in Ontario. The Local Health Integration Network (LHIN) reimburses VON for the scheduled time allocated for each client visit.

The collective agreement set out the normal bi-weekly hours of work and the length of a normal shift, although there was no guarantee, employees were paid for scheduled visits. If cancellations reduced an employee’s scheduled hours, VON was required to provide an alternate assignment when reasonably possible.

The collective agreement also permitted employees to claim mileage for travel between clients and to the first client of the day. In addition, they were paid for time spent travelling between clients at the rate of 1.5 minutes at the straight-time rate for every two kilometres driven.

During collective bargaining in September 2017 to renew the collective agreement, VON proposed deleting the travel time pay provision. The union rejected the proposal.

In November, VON introduced new software that tracked the time employees spent at client homes and driving. VON discovered that employees occasionally spent less time with a client than the scheduled time for which they were being paid. When an employee finished an appointment early and was paid to drive to the next client while still on the clock for the previous one, they were being paid twice for the same time.

In January 2018, VON informed the union that it would be introducing a new system of wage calculation in which it would “pay employees for actual direct time with clients.” Travel time would be paid in full if it occurred outside the scheduled appointment time, but if the client visit was shorter than scheduled, the travel time afterwards would be deducted from the scheduled visit time to avoid the double payment.

VON implemented the change on May 1, 2018. The union filed a grievance, arguing that the travel time payment was a separate entitlement under the collective agreement that was distinct from earnings for work. Although there was no guarantee of hours, the agreement referred to “scheduled hours” and VON couldn’t make a distinction between actual hours worked and scheduled hours, it said.

VON claimed that the double payment for travel time after shorter-than-scheduled client visits was pyramiding, which the collective agreement didn’t allow. It added that the intention was to pay employees for the actual time of their visits along with their travel time.

The arbitrator agreed with the union that the collective agreement stipulated that employees were paid for scheduled visits. This reflected the arrangement with the LHIN, which reimbursed VON for scheduled visits to clients’ homes, not the time employees spent there, the arbitrator added.

“There is no distinction in the collective agreement between the scheduled visit and the actual visit,” said the arbitrator. “The obligation of the employer towards the HSWs and PSWs is to pay them for the full period of their scheduled visit.”

The arbitrator also agreed that the travel time payment was a different entitlement under the collective agreement.

The arbitrator noted that the new software allowed VON to determine any differences between client visits and their actual needs, and this could be used to recommend changes of the assigned times to the LHIN. However, VON wasn’t permitted to “unilaterally alter its obligation to pay for an employee’s scheduled visit by changing its obligation to pay only for the employee’s actual visit.”

The arbitrator determined that VON breached the collective agreement and that employees who had travel time payments deducted were entitled to reimbursement.