Relying on bagged lunches unreasonable to workers: COPE
When the Insurance Corporation of British Columbia (ICBC) decided to stop allowing centralized estimating facility (CEF) estimators to claim the costs of meals while they were away from their regular location, the union argued ICBC violated the collective agreement.
The public automobile insurer had previously said “employees travelling on corporation business or working away from their established/alternate headquarters will be reimbursed for reasonable expenses,” according to article 20.06 (expense claims) in the collective agreement.
The article allowed workers to receive reimbursement of $10 for breakfast, $12 for lunch and $21 for dinner. The agreement also registered a 20-kilometre area from the employee’s headquarters that was considered the local region, and expenses were not covered within this area.
But on July 6, 2016, ICBC told the union, Move-Up Together (COPE), Local 378, that the practice would be ended moving forward.
ICBC’s reasoning was that it reduced the servicing boundaries for workers who could claim expenses. “Employees doing estimating roadwork will no longer be entitled to expense for lunch based on ICBC’s road territory,” wrote
John Foreman, manager of claims operations, in a memo.
The employer instead suggested, “If taking a lunch, that the employee may stop by another ICBC location and use that office lunchroom,” according to the memo, which was issued to 80 estimators who worked out of the Coquitlam, B.C., location.
Typically, each estimator was required to do one day of roadwork per month when most of the shift would be completed at various locations away from the Coquitlam office.
But the union argued the collective agreement wording was unambiguous and it said employees working away “will be reimbursed” for expenses, and the practice had been ongoing since 1974. It accused ICBC of introducing an unreasonable practice by cancelling the expenses-allowed provision.
ICBC countered, with lawyer Chris Leenheer testifying: “Employees are now driving in a more confined area. That was what caused the corporation to look at the ‘meal expense’ issue.”
The estimators’ regular job description allowed workers to claim meal expenses when they were inconvenienced by being away from the home base, said the union. Due to the nature of an estimator’s work — which often involved regularly travelling to different areas of the region— having them rely on bagged lunches alone was unreasonable.
Arbitrator Joan McEwen upheld the grievance and ordered the employer to continue to reimburse employees.
“Having carefully considered the evidence and the submissions, I have determined that the language in article 20.06 (b) bears the meaning advanced by the corporation but that, due to the unique circumstances of this case, the practice cannot be terminated until the expiry of the collective agreement,” said McEwen.
“The corporation did not introduce a new policy; rather, it took the opportunity, pursuant to the geographical boundaries being reduced, to institute what it believed to be the correct interpretation of article 20.06 (b).”
However, by continuing to reimburse estimators since 1974, this proved that ICBC tacitly accepted the union’s interpretation of the collective agreement.
“Given its persistent practice over the years — in the face of policy directives spelling out the conditions for entitlement thereto — the corporation must be deemed to have known that the estimators were being reimbursed for a benefit to which they were not entitled,” said McEwen.
“In the circumstances, I am satisfied that estoppel has been established. For the duration of the current collective agreement, CEF estimators performing road duties will be able to claim the meal-expenses benefit.”
Reference: Insurance Corporation of British Columbia and Move-Up Together (COPE), Local 378. Joan McEwen — arbitrator. Chris Leenheer for the employer. Brian Nelson, Jude Morrison for the employee. Feb. 14, 2018. 2018 CarswellBC 464
