April 15, 2010
25.4.144
Background
The employee grieved the department's refusal of a request for a waiver of shelter cost, in accordance with FSD 16 – Assistance for principal residence, for the period of the employee's two-year assignment.
Bargaining Agent Presentation
Although there are no specific provisions within the Directives for waiver of shelter cost where an employee is not permitted to rent/lease their principal residence, the Bargaining Agent representative relied on the introduction of the Foreign Service Directives, which explains the underlying principles of the Directives, which include the principle of comparability. The principle of comparability recognizes that insofar as is possible and practicable, employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada.
The Bargaining Agent representative noted that the intent of FSD 16 – Assistance for a Principal Residence, is clear in that an employee should not be subject to two rents by virtue of serving at a post outside Canada; however, the specific situation in which the grievor finds herself was not envisaged. The Bargaining Agent representative indicated that as it was never intended that the Directives would or could cover every individual situation, the following paragraph is found in the introduction to the FSDs: "To achieve the objectives to the Directives, consideration will continue to be given to situations which may arise which are not specifically dealt with in the Directives but which fall within the intent of the Directives as described in the basic principles outlined above or explained in the introduction to a specific directive."
The Bargaining Agent representative concluded that requiring an employee to sell their principle residence in order to avoid a dual rent situation is not in accordance with the intent of the FSDs.
Departmental Presentation
The Departmental representative indicated that at the time the grievor purchased the residence, the greivor was aware that renting of the unit was subject to the Board of Directors approval as stated in the Bylaws. Furthermore, the Departmental representative noted that the argument of comparability cannot be used in this case as the grievor would not have been in a position to rent the unit had the grievor been in Canada or anywhere else because of the Bylaws of the cooperative.
The Departmental representative also highlighted that there is no authority under FSD 16 – Assistance for principal residence, to grant a waiver of shelter in the grievor's situation. The departmental representative stated that FSD 16.05(a), which authorizes the application of a waiver of shelter under certain situations, is meant for short-term and unexpected situations that are out of the employee's control, normally for a maximum period of nine months. The grievor requested the waiver of shelter for the entire duration of the posting.
The Departmental representative concluded by noting that the department supports the decision to deny the grievor's request for a waiver of shelter cost for the entire period of his/her assignment.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded that the employee was treated within the intent of the Foreign Service Directives. The Committee agreed that it was the grievor's personal choice not to sell her home or continue to pursue a rental option. It was agreed that there are no provisions under the FSDs to grant a waiver of shelter in the grievor's situation. As such, the grievance was denied.