Past knowledge not enough for onus of proof: Arbitrator
Even though he travelled more than 60 kilometres per day to his daily reporting point for about three months, an Nova Scotia excavator operator was denied an expected travel benefit.
John Jollimore, worked for Emera Utility Services and lived in River John, Nova Scotia, when in the winter of 2017, and the spring of 2018, he was assigned to meet daily at the Truro, N.S., yard, before attending to his daily duties.
There were three regular routes that were available to Jollimore during the period (known as the preferred route, Mountain Road and the College Grant Road).
The union, the International Brotherhood of Electrical Workers (IBEW), Local 1928, testified Jollimore took what it coined the preferred route during December 2017, and continuing through January and February 2018.
The route was more than 60 kilometres and it should have qualified Jollimore to receive the travel benefit, said the union. Both other routes were less than 60 kilometres.
According to article 15.02(A) of the collective agreement: “In the event that the reporting point for work is located further than 60 kilometres from the employee’s place of residence then the employee will be paid room, board and travel allowance of: $180 per day worked.”
When he wasn’t paid the benefit, Jollimore questioned his supervisor, who promised to investigate. The supervisor then informed Jollimore that according to an inquiry made using Google Maps, Mountain Road was the employer’s preferred route and it totalled less than 60 kilometres.
On Feb. 1, 2018, Jollimore and IBEW grieved the denial of the benefit.
The employer responded on Feb. 16. “According to the map attached the distance from his place of residence to current report pt. is 59.2 km. Further, Jollimore reported to this location for a least the last two yrs and did not receive room and board.”
Jollimore testified that because he had grown up in the area, he was familiar with Mountain Road. It was not completely paved, and it was rarely graded. As well, testified Jollimore, the school bus he took as a child avoided large parts of it and it also contained two parts that were swampy.
After the grievance was filed, said Jollimore, he noticed a section of it was icy and marked with red pylons, presumably by the transportation ministry, which indicated it was unsafe.
His wife and her father had gotten stuck for an hour and a half on one day in January, he said.
Employees are obligated to travel the shortest route when possible, said the employer, and Jollimore and the union failed to prove that the road was unsafe during the months in question.
Arbitrator Augustus Richardson agreed and denied the grievance.
“I was not persuaded that the union had established on a balance of probabilities that winter conditions on any particular day or series of days during the months of December 2017, and January and February 2018, had rendered the Mountain Road so hazardous that no reasonable driver (let alone Jollimore) would use it for purposes of driving from his or her residence to their reporting point.”
Despite Jollimore’s local knowledge, “I was not persuaded that (Jollimore’s) past knowledge and experience of winter driving conditions on Mountain Road was enough to meet the onus of proof that was on the union. I am prepared to accept for purposes of argument that local knowledge that Mountain Road under certain winter conditions might be too hazardous to drive could be relevant,” said Richardson.
“But such an argument required evidence that those particular conditions actually existed on any particular day. There was no such evidence for any particular day, let alone for the three months in question,” said Richardson.
Reference: Emera Utility Services and International Brotherhood of Electrical Workers, Local 1928. Augustus Richardson — arbitrator. Rebecca Saturley, Richard Jordan for the employer. Raymond Larkin for the employee. July 16, 2018.
