Overpayment – Vacation Travel Assistance – Isolated Posts and Government Housing Directive

Background

The employees were hired on a determinate basis from October 24, 2005 to February 8, 2006, a term of 15 ½ weeks. Toward the end of November 2005, the grievors requested the non‑accountable 80% VTA entitlement under the provisions of the Isolated Posts and Government Housing Directive (hereafter IPGHD). Payments in the respective amounts of $3, 601.86 and $2,161.13 were issued in December 2005; the grievors were compensated based on the maximum allowable VTA entitlement (12 month period). On February 3, 2006, the grievors were notified by the department that an overpayment had occurred and that this overpayment would be recovered. The department clarified that the grievors' actual entitlement should have been pro‑rated as they were term employees. A follow-up letter, dated May 8, 2006 amended the overpayment amounts to $2,599.44 and $1,696.99, respectively, which were the net amounts due. The grievors requested that the decision for recovery be reversed.

Bargaining Agent Presentation

The Bargaining Agent representative argued that from a complete and detailed review of the directive, the grievors had been properly paid the VTA. He is of the opinion that the employer is endeavoring to read an interpretation of the directive based on an absence of specifics to support their position.

The Bargaining Agent representative contended that the directive makes no distinction between indeterminate and term employees, other than for term employees hired for less than three months. He argued that the directive clearly identifies various groups of employees and how the VTA it applies to them (i.e. terms less than three months, part-time employees less than 1/3 the normal work week of an indeterminate employee and seasonal employees), but that it was silent for term employees in excess of three months.

The Bargaining Agent representative stated that nowhere in the IPGHD is there information to support the employer's position that the VTA for the grievors is to be pro-rated based on their term employment. He contended that the Term Employment Policy makes no mention of the working conditions of term employees to be different than that of indeterminate employees and that if it was intended by the employer that such a distinction be made, this would be the most appropriate location for the distinction. He suggested that in the absence of any specific direction in the directive, the employer is over-stepping its authority to deem the monies were paid incorrectly and to take recovery action.

The Bargaining Agent representative contended that if this matter is an issue for the employer, there is an obligation on the employer and Bargaining Agent to address it under the NJC negotiation process and have the directive amended accordingly. In the absence of such clarification, the Bargaining Agent representative maintained that the grievors had been properly paid their VTA and that any recovery of monies from the grievors should be reversed.

Departmental Presentation

The Departmental Representative stated that TBS provided advice in its interpretation of the directive regarding the VTA and the entitlement of the allowance for employees whose specified period of employment is over 3 months. A term employee whose specified period of employment is over 3 months is entitled to VTA on a pro-rated basis. The entitlement is based on the total length on the term, which in this case, was 3.53 months. Therefore, the grievors' VTA entitlement should have been pro-rated based on their specified period of employment, instead of receiving the maximum allowable entitlement which resulted in an overpayment. Consequently a recovery was established.

The Departmental Representative suggested that even though the directive does not specifically state that the VTA entitlement should be pro-rated for term employees, he strongly believes that the intent of the directive was not to allow term employees to unjustly profit from a maximum allowable entitlement while having worked 3.53 months, when term employees having worked 12 months would be entitled to the same benefits. The Departmental Representative maintained that the grievors were treated within the intent of the Directive.

The Departmental representative also maintained that the fact that TBS's interpretation was issued on March 20, 2005 further supports the manner in which the directive and the VTA should and is applied. On January 23, 2006, TBS re-iterated and confirmed the interpretation and the department applied it accordingly.

Executive Committee Decision

The Executive Committee considered the report of the Isolated Posts and Government Housing Committee and noted that the Committee had reached an impasse.

The Executive Committee agreed that the grievors had been treated within the intent of the Isolated Posts and Government Housing Directive. The Committee confirmed that while the directive is silent on the pro-rating of VTA benefits for term employees over 3 months, the full entitlement of the Vacation Travel Assistance is intended for employees who work a full year, as such, pro-rated for the period equivalent to the length of service. It was agreed that in this case the VTA would be based on the number of weeks the grievors were employed. Therefore, the grievances are denied.

The Executive Committee agreed that there is no requirement for the Isolated Posts and Government Housing Committee to co-develop a communiqué on this issue.