December 1, 1997
25.4.118
The grievor sought the reimbursement of real estate and legal fees.
The grievor joined the Department in December 1990. In early 1991, the grievor learned that he could expect to be posted within 2 years. It was decided that the family would remain in the family home in Brampton, Ontario in order to avoid two relocations in two years.
In March 1993, the grievor was offered a 3-year assignment in Dayton, Ohio effective August 1993. The family moved to Ohio, purchased a home, and the family home in Brampton was subsequently sold.
The Bargaining Agent representastive stated that in June 1993, the grievor was informed by the area FSD advisor, that as a result of recent changes to FSD 16.19, an employee could now claim for payment of real estate and legal fees for the sale of a principal residence outside the headquarters city. Consequently, the grievor sold his residence in Brampton at a reduced price. In November 1993, the grievor submitted his claim and funds were deposited into the grievor's bank account in late November 1993. In July 1994, Management advised the grievor that his claim could not be authorized under FSD 16.05/16.20. This was the first indication that the claim had not been approved.
The Bargaining Agent always agreed that there is no authority for the "Department" to authorize payment of real estate and legal fees under FSD 16 in these circumstances. At the same time, it has always been the Bargaining Agent's position that the grievor would not be in this situation had it not been for the advice he was given.
In recognition of the special circumstances noted in the Introduction to the FSDs, FSD 16.05 provides an employee with flexibility in claiming real estate and/or legal fees for the sale and/or purchase of a principal residence in the headquarters city. The basic intent was to allow an employee to claim these costs on one occasion in a foreign service career and was limited to the headquarters city in recognition that this is the normal place of residence in Canada for career foreign service employees.
It was the Bargaining Agent's position that it would have been within the intent of the Directives for the Department's Deputy Head to ask the Treasury Board Secretariat for an exception to the provisions of FSD 16.05, in order to have allowed the grievor to utilize his once-per-career option to claim real estate and legal fees for the sale of a principal residence for the sale of his residence in Brampton, notwithstanding that the residence was not located in the headquarters city.
The Departmental representative explained that when the grievor joined the Department in 1990 following an open competitive process, his place of residence was Brampton, Ontario.
On appointment, the grievor received and accepted a letter of offer that clearly stated his terms and conditions of employment. The letter noted that "Assistance in the disposal and acquisition of accommodation shall not be given." The Department paid all claims submitted by the grievor permitted in the Relocation directive including Temporary Dual Residence Assistance (TDRA) as his dependents continued to reside in Brampton.
It was the Department's position that the grievor's relocation entitlements, for his Brampton residence, were dealt with when he first joined the Department. The grievor accepted these conditions when he signed the letter of offer. His relocation entitlements were very clear.
The representative indicated that the posting advisors had no recollection of having made a commitment to reimburse the grievor for real estate and legal fees and the departmental Ombudsman found no written evidence.
In response to the Bargaining Agent's admission that there was no authority for the Department to pay under FSD 16 and that it therefore suggested that an ex-gratia payment be sought, the representative stated that management cannot prevent an employee from requesting that an ex-gratia payment be sought from Treasury Board; however, the Deputy Head may not necessarily concur. In this particular case, the grievor never submitted such a request.
The Department reiterated its position that the grievor was treated within the intent of the FSD 16 in that when the grievor received his Ohio posting, his headquarters was Ottawa, not Brampton.
The Executive Committee considered the Foreign Service Directives Committee report. The Committee could come to no agreement as to the intent of the Directive and therefore came to an impasse on the matter.