February 17, 2010
21.4.985
Background
The employee was on authorized travel for 12 nights and an additional 13 nights while her spouse was also away on duty. The employee grieved the department's denial to reimburse for dependant care expenses as per section 3.3.5 of the Travel Directive.
Bargaining Agent Presentation
The Bargaining Agent representative maintained that the Department erred in its interpretation of the NJC Travel Directive and application of the dependant care provisions by disallowing the grievor's dependant care expenses solely because the spouse is a ships crew employee. In accordance with section 4.2, ship's crew members are deemed not to be in travel status for the period during which the normal duties of that employee are performed aboard a self-contained vessel.
The Bargaining Agent representative submitted that section 4.2 of the Travel Directive has a specific intent and purpose that cannot be applied to dependant care provisions of the Directive without discriminating against the grievor.
The Bargaining Agent representative submitted that further to the arguments presented above, the grievor should be considered a sole caregiver in that the grievor and the spouse were involuntarily geographically separated from each other, their residence, and their child to fulfill their employment duties. While the grievor was on authorized government travel, the spouse, a member of the ships' crew, reported for shift of duty and remained onboard the vessel during the two claim periods.
The Bargaining Agent representative submitted that the criteria for the allowance are intended to be interpreted in a much broader sense that has been done in this case. The circumstances at hand may be quite unique, in that both parents are federal employees but are treated differently when required by the employer to be away from home. The specific exclusion of a subset of federal employees from access to a benefit, for which the NJC has recently made a point of extending eligibility, appears inconsistent.
If the basis for denial is viewed as the inability of the grievor to meet the "sole caregiver" criteria, the Bargaining Agent representative submitted that it is the Bargaining Agent's position that the grievor has been discriminated against on the basis of marital status. A single parent required to serve onboard a departmental vessel at sea would be entitled to the dependant care allowance. Given the absence of the spouse during the period claimed, the only effective difference between the grievor's situation and a single parent place in this position, is the fact that the grievor does have a spouse.
If the basis for denial is viewed as the inability of the grievor and the spouse to meet the criteria that both federal employees must be "required to travel on government business at the same time", the Bargaining Agent representative submitted that it is the Bargaining Agent's position that the grievor has been discriminated against on the basis of family status. All other factors being equal, the denial of the grievor's claim would not have occurred had the grievor been in a relationship with a federal employee who was not a ship's officer or member of a ship's crew. The Bargaining Agent representative submitted that the Bargaining Agent's claim of discrimination in this instance is rooted in the fact that the grievor was denied access, not because the grievor has a spouse, but because of who the spouse is.
Departmental Presentation
The Departmental representative submitted that the grievor did not meet the conditions of section 3.3.5 to qualify for childcare.
Regarding subsection 3.3.5(b), the Departmental representative submitted that as a member of the Department's ship's crew, the spouse is not considered to be "required to travel on government business" when assigned to a self-contained vessel, rather the spouse is deemed to be in the HQ area. Therefore, although the spouse was required to report onboard as per the normal shift schedule, the spouse was not in travel status at the same time as the grievor.
Regarding paragraph 3.3.5(a), the Departmental representative submitted that the grievor is married and both the grievor and the spouse are caregivers for their child.
Regarding the expansion of the definition of "sole caregiver" to include cases of "involuntary separation", the Departmental representative maintained that since the grievor and the spouse occupy the same principal residence, neither individual can be considered a "sole caregiver" as per the CRA definition.
The Departmental representative submitted that the duration for which dependant care was needed in this case was 24 days, broken into two separate periods. The Department suggested that one could qualify these periods as being short in duration for which both the grievor and her spouse were caregivers.
Executive Committee Decision
The Executive Committee noted that the Government Travel Committee had reached an impasse on the above grievance. The Executive Committee agreed that the employee had been treated within the intent of clause 3.1.5 as the grievor's spouse was not on authorized government travel status. The grievor's spouse was on duty as per section 4.2 Special Travel Circumstances for Ships Officers and Ships Crews of the Travel Directive. As such the grievance was denied.