October 27, 2010
25.4.146
Background
The employee grieved management's decision to deny the application of FSD 3 – Application and Appendix A (revised to FSD 8 effective April 1, 2009) specifically payment of FSD 56 – Foreign Service Premium and payment of FSD 55 – Post Living Allowance during a secondment from November 10, 2008 to August 31, 2009.
Bargaining Agent Presentation
The Bargaining Agent representative advised that in accordance with FSD 3.04, the grievor is considered to be unaccompanied for the purposes of the FSDs, except for FSD 15 – Relocation and FSD 25 – Shelter, where the grievor is considered to be a dependant of the grievor's spouse. Consequently, as an unaccompanied employee of an employee-couple, the grievor is entitled to Post Living Allowance (PLA) in accordance with FSD 55.
Although FSD 8 (and Appendix A to FSD 3) did not address the specific application to employee-couples, the provision for meal allowance/Post Living Allowance reflects the principle of comparability. As one employee of an employee-couple, application of FSD 55 – Post Living Allowance would replace provisions for a meal allowance under FSD 8/Appendix A to FSD 3 to place the grievor in the same relative position as other employees on short term assignments and with employee-couples serving under the Foreign Service Directives.
The Bargaining Agent representative concluded that in keeping with the intent of Appendix A to FSD 3 and FSD 8, as well as provisions for employee-couples under FSD 3.04, the grievor should receive PLA from November 10, 2008 to August 31, 2009.
Departmental Presentation
The Departmental representative indicated that the department is of the opinion that the grievor is considered one employee of an employee-couple for the duration of the grievor's assignment. Furthermore, the department agrees that the grievor is to be considered unaccompanied for the purposes of the FSDs, except for FSD 15 – Relocation and FSD 25 – Shelter, where the grievor was considered to be a dependant of the grievor's spouse.
It was noted that FSD 8.21(b) clearly states that only accompanied employees on short term assignments are eligible to receive PLA, when the Post Index is above 100. Although the Post Index is above 100 in the post city, the grievor was considered unaccompanied during the assignment and was therefore not eligible to receive PLA. The Departmental representative also highlighted that based on FSD 3.02 FSD 8 must take precedence over the Introduction, including the Principles, of the Directives. As such, the department believes that the grievor was treated within the intent of the directive.
Executive Committee Decision
The Executive Committee considered the report of the Foreign Service Directives Committee which concluded that the grievor had been treated within the intent of the Foreign Service Directives. The Executive Committee could not come to a consensus on the grievance. As such, the Committee reached an impasse.