Arbitrator Finds No Obligation To Reimburse Expenses In Transition To Remote Work

• Published date: 03 November 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Health & Safety, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Employment and Workforce Wellbeing
• Law Firm: Borden Ladner Gervais LLP
• Author: Borden Ladner Gervais LLP

Introduction

In Toronto District School Board v. CUPE Local 4400, the CUPE Local 4400 (the Union) brought forward grievances arising from the transition of the Toronto District School Board (the Board) employees to remote work due to the COVID-19 pandemic. In a decision released on April 9, 2021, Arbitrator Eli Gedalof dismissed the grievances and concluded that the Board reasonably exercised its management rights during the transition to remote work.

Background

On March 12, 2020, the Government of Ontario began to close all public schools in the province, with closures and remote learning eventually extending to the end of the school year. During the 2020-2021 school year, the Government of Ontario mandated schools to open and close multiple times. Due to the school closures, many Board employees were obligated to work from home.

The Union's position

The Union argued the Board should reimburse its employees for their out of pocket expenses they incurred while transitioning to remote work. These expenses range from $20/month to $1,000 and include office supplies, furniture, technology, internet and utility expenses. The Union argued that the Board's failure to reimburse the members' out of pocket expenses was an unlawful restriction on its members' compensation and an unreasonable and arbitrary exercise of its management rights, which was inconsistent with the collective agreement and the Employment Standards Act, 2000 (ESA). Further, the Union argued the Board had been unjustly enriched by passing its operating expenses to its employees. They also argued that the Board had imposed technological changes without giving proper notice and that the Board had altered the terms and conditions of employment and consequently, breached seniority rights.

The Board's position

The Board argued there was no legal basis in the collective agreement, the ESA, or in equity for reimbursing out of pocket expenses incurred due to remote work as the circumstances were not under the Board's control. In April 2020, the Board issued a Reimbursement Policy to manage reimbursing employees for expenses, which provides for employees to obtain pre-approval for expenses. The policy includes the following:

• Learning supplies or courier costs incurred after April 16 2020 will not be reimbursed;
• Purchases of office supplies or computer accessories that are essential to staff's remote work arrangement will need to be reviewed on a case-by-case basis to determine eligibility for...