OLRB Finds the Employer is Not Obligated to Pay Employee’s for Commute Time in Company Car

Written on behalf of Peter McSherry

In Tradium Mechanical Inc. v Abdellatif Jaidane, the Ontario Labour Relations Board (OLRB) recently found that a company does not have to pay the commuting costs for an employee s who are provided with a company vehicle.

What Happened?

The employer is an HVAC and refrigeration company with three technicians providing maintenance and servicing to customers in Toronto and the surrounding area. The employer provides 24/7 service and responds emergency service calls as needed. While the employer has a shop, most of the work performed by the technicians is done at customer locations.  It is common for the technicians to perform work at more than one location over the course of a workday.

There is parking available at the shop for any technicians who drive to work in their personal vehicle, want to leave their car there and then switch to a company car for work use. Each of the company cars that were available for employee use were “mobile shops” full of all tools needed for the technicians to perform service work.

The employee in question was hired as an HVAC/R Journeyman technician on July 24, 2015. The employee did not own a car. When he was hired he was asked if he wanted to use a company car that he would be able to use as transportation from home to work and vice versa, and be able to keep at his home. He was informed that he would not be paid for travel time between work and home.

Following his termination in October 2015, the employee filed a claim with the Ministry of Labour seeking compensation for all the time he spent commuting to and from work and job sites in the company car. An Employment Standards Officer (ESO) initially decided in favour of the employee. The employer appealed the ESO’s decision to the OLRB.

The Original ESO Decision

The original ESO based her decision on the Employment Standards Act Policy and Interpretation Manual, particularly the section on travel which states:

• With the exception of commuting time, any time a person spends travelling (irrespective of the mode of transportation) for the purpose of getting to or from somewhere where work will be performed, must be counted as hours of work;
• Commuting time means the time required for an employee to travel to work from home and vice versa.  However, there are a number of exceptions to the rule.
• If the employee takes a work vehicle home in the evening for the convenience of the employer, the hours of work begin when the employee leaves home in the morning and end when he or she arrives home in the evening.
• If the employee is required to transport other staff or supplies to or from the workplace or worksite, time spent must be counted as hours of work.

The ESO found that:

Therefore, based on the above definition, because the claimant had a company vehicle which he took home, all hours he spent travelling from the moment he left home to the moment he arrived home is considered to be travel time, and is owed wages for this time.  The employer stated in the meeting that the claimant did not have his own personal vehicle, therefore he was provided with the opportunity to take the company vehicle home for his convenience, yet this was also seen as a convenience to the employer as the claimant was able to get to work sites more swiftly and without delay…

The Appeal Decision

Vice-Chair Beresford considered whether “the convenience of the employer”, per the Manual, should be the deciding factor on whether an employee ought to be compensated for commute time in a company car. He noted that the Manual is not binding, and that the Employment Standards Act itself does not specifically provide for how travel time is to be paid.

At the appeal hearing, the technicians testified that all of them used a company car, in lieu of their own car, to get from home to work, and from work to home. All technicians were aware that the employer did not consider travel to be “work time” and, therefore, did not pay the technicians for their commute time. Technicians were paid for all other travel during the work day, beginning with the first customer visit to the last customer visit (or drop off at the shop), and including time spent picking up supplies or parts or other technicians on the way to a job.

The employer testified that it was convenient for the employee to take the company car home as he didn’t have a personal vehicle and use of the company car would save him both him and the cost of taking public transport.

The employee testified that his use of the company car was convenient for the employer has he was able to get to the job sites faster, particularly when on call and required to respond to emergencies.

In making his final decision, Vice-Chair Beresford stated that if the OLRB were to adopt the ESO’s reasoning it would mean that any employee who was using a company car with the ability to take that car home would have to be paid for all of the time they spent commuting to and from work while driving the vehicle. Vice-Chair Beresford found that “not only is that not a reasonable interpretation of the Manual, it has no basis in law”. He stated that:

The fundamental obligation of any employee…is to get from home to his place of work however the employee chooses to do so.  This can be done in a number of ways, including using public transportation, a personal vehicle or a company-owned vehicle and that travel time is “commuting” to work, not deemed work.  The workplace can be the first job site of the day, a supplier, a shop or any other type of place that the employee is required to go by the employer.  Similarly, any travelling done after the recognized work time to any location not required by the employer is also “commuting” from work and not deemed work.  The fact that the employee is using a company vehicle and who is or is not convenienced by that is immaterial.  The rather indefinite concept of “convenience” (what it means, how much, to whose benefit, to what degree, etc.) is not part of the applicable legislation and has not been used in arriving at the Board’s decision in this case.

Here, the evidence established that at no time was the employee required to use the company car for transportation from his home to the job site so that he could being his work day. While it would have certainly taken him longer to leave the car at the shop every day, and travel to and from home via public transportation or other means, caselaw clearly shows that reporting to work on time is a job requirement, not a benefit to the employer. Travelling to a location where the employer needs work to be done, and travelling home from the last worksite to home (or any other location where work is not required) is considered commuting time, and is not compensable.

Additionally, in this case, all employees had been advised that traveling to and from home and worksite was not paid time.

Simply put, travel time is not paid for until the employee arrives at a location where “work” actually starts and travel time from a location where “work” actually stops is similarly not paid.

The Vice-Chair ultimately concluded that the employer did not owe the employee any compensation for travel time.

It is important to note that all workplace disputes are decided on the specific facts at hand, and not all employee travel related cases are identical. In this case, a crucial deciding factor was the fact that employees were given the option of keeping their company car at the shop, or taking it home. If all employees were required to bring the company car home, the Vice-Chair’s ultimate decision may have been different.

If you are an employee and have questions about your rights in the workplace,  including your right to overtime pay, travel pay or any other compensation, contact Peter McSherry by phone at 519-821-5465 or by e-mail to schedule a consultation today. I can protect your rights, advocate for your best interests with employers, and ensure your case is handled properly and efficiently for a fair settlement.