August 25, 2010
41.4.26
Background
The employee grieved management's decision to apply section 8.21 of the NJC Integrated Relocation Directive to the disposal of the grievor's principal residence and consequently not to reimburse the full cost of the grievor's relocation.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the income property issue was never discussed during the grievor's initial counseling session with Royal Lepage Relocation Services (RLRS) and the grievor did not believe he was selling an income-producing property.
The Bargaining Agent representative submitted that there was also no discussion of the income property issue during the home inspection by the appraiser. The appraisal report noted that the "loft above the garage" used to be the grievor's master bedroom. There is no private entrance to go to the alleged loft and the zoning of the house is not for rental apartments; it is classified as a residential dwelling residence. Furthermore, although the grievor received a monthly payment from his friend, it cannot be considered extra income.
The Bargaining Agent representative submitted that following receipt of the first expense claim showing a reimbursement of 66% of temporary dual residency expenses, the grievor contacted RLRS and was informed that the grievor was responsible for 33.3% of the costs because the grievor's residence was an income-producing property within the meaning of section 8.21 of the Integrated Relocation Directive (IRD). When the grievor asked what could be done about this, the grievor was told to wait until the final expense claim was filed. At that time, the grievor also informed RLRS that a friend was living in the grievor's home temporarily and that the friend had offered to share living costs. The Bargaining Agent submitted that this was not a rental agreement. There was no lease, and at the time of relocation, the grievor's residence was 100% vacant.
The Bargaining Agent representative submitted that it was when the grievor received an expense claim showing reimbursement of 66% of home expenses, including the real estate fees and mortgage penalties that the grievor realized that the reduced assistance also applied to the expenses related to the sale of the grievor's home.
The Bargaining Agent representative submitted that following receipt of the final payment, the grievor spoke to RLRS to review the worksheet of all relocation expenses, and expressed disagreement with the amount paid. The grievor was then advised that he could submit a business case to attempt to rectify the situation. The submitted business case was declined.
The Bargaining Agent representative submitted that the employer did not take into account the specific facts of the grievor's case and that the employer's decision was not sensitive to the needs and interests of the grievor and the friend. The Bargaining Agent representative also believed that the employer's interpretation of the IRD is neither fair, nor just, nor reasonable.
The Bargaining Agent representative submitted that it was RLRS' responsibility to inform the grievor, once it received the appraisal report, that the grievor's residence was being considered as an income-producing property. They are the experts and are mandated to provide counseling services to the employee. This was a reasonable expectation on the part of the grievor since the grievor had not raised this as an issue during the initial counseling session. The grievor had purchased the single-family detached home in the same manner as it was at the time of inspection; the "loft above the garage" and the basement were already constructed as is. As such, the grievor had no reason to think that the house could be construed as anything but a single-family detached home.
The Bargaining Agent representative submitted that the description of an income-producing property at section 8.21 of the IRD does not describe the grievor's residence. The grievor's residence is not a duplex or an apartment complex. This is a home where the "loft above the garage" was previously used by the grievor as the master bedroom. In order to provide the friend with some measure of privacy, the grievor simply moved some furniture around.
Finally, the Bargaining Agent representative submitted that the grievor was out of pocket a large sum of money. This is not in keeping with the purpose of the IRD which is to relocate employees at the most reasonable cost to the public and with a minimum detrimental effect on the transferred employee.
Departmental Presentation
The Departmental representative submitted that the grievor received a copy of the appraisal report which noted that the loft unit was rented at $600.00/month, heat, lights, and cable included. If the grievor did not agree with the appraisal, the grievor should have requested a second appraisal in accordance with section 8.10 of the IRD.
The Departmental representative submitted that RLRS also based their assessment of the grievor's property from a document called "Sommaire et grille financière" which was completed when the grievor enlisted the help of RLRS. Two sections of that document indicate the grievor's property as an income property. The document was reviewed and signed by the grievor therefore showing acceptance of its content.
The Departmental representative submitted that the grievor's first expense claim clearly showed the reimbursement at 66% of temporary dual residency expenses. The grievor signed this claim and cashed the cheque; the grievor did not object, although this was the opportunity to do so if it was believed that this contradicted the IRD. The Departmental representative submitted that the grievor should have made his concerns known in writing to the Departmental National Coordinator. Although the grievor advised the RLRS was contacted and the greivor was told to wait until the final expense claim before doing anything, there is no written evidence of this.
The Departmental representative submitted that the grievor also signed the relocation expense claim for the reimbursement of the real estate commission. Again, the claim clearly identifies the reimbursement at 66% and again the grievor did not avail himself of recourse rights. Some months later, the grievor contacted RLRS who advised to submit a business case requesting to be reimbursed the remaining 33.3% of the expenses related to the sale of the home.
The Departmental representative submitted that the Bargaining Agent representative contends that the description of an income-producing property as per section 8.21 of the IRD does not describe the grievor's residence. However, the section states "…such as…" therefore not limiting its definition to those dwellings listed.
Finally, the Departmental representative submitted that it is not the employer's responsibility to contest the information on the appraisal report; it is the employee's responsibility. The employer's responsibility is to reimburse the employee's actual and reasonable relocation expenses (via RLRS) within the limits of the IRD. Given that the grievor's house was declared as an income property in the appraisal report all expense claims have been reimbursed according to the intent of the IRD.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the grievor was treated within the intent of the NJC Integrated Relocation Directive. The Committee agreed that based on the contents of the appraisal report and the grievor's own business case, the grievor's residence was an income-producing property within the meaning of the IRD. The appraisal report noted that "the loft above the garage was being rented" and the grievor's business case stated that "the loft above the garage and the basement apartment were from time to time informally rented to people". As such, the grievance was denied.