October 27, 2010
41.4.27
Background
The employee grieved the department's refusal to provide the 10% Home Sale Assistance as per section 8.3 of the NJC Relocation Directive.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the NJC Relocation Directive is to be interpreted in an equitable, reasonable and fair manner. In interpreting the Directive, departments must assess each case on its merits. The Bargaining Agent representative suggested that the grievor's personal circumstances were not considered nor were the grievor's needs and interests assessed. There was no consideration given to the fact that the home was located in a depressed market and that it was listed at a difficult time of the year for sales of homes.
The Bargaining Agent representative submitted that the Department has taken the position that the effective date of October 1, 2008 for the application of section 8.3 entitles it to refuse the grievor's claim for reimbursement, as the grievor's relocation had been approved prior to this date.
The Bargaining Agent representative submitted that the only reasonable interpretation of section 8.3 is that it should apply to every home that is still unsold as of October 1, 2008. Any other interpretation simply does not accord with either the Principles or the Purpose and Scope of the Directive.
The Bargaining Agent representative submitted that there is nothing in the Directive which would suggest that "effective" means only new claims would be processed and that existing claims would be denied.
The Bargaining Agent representative submitted that as of October 1, 2008 the grievor's relocation remained incomplete as the grievor's home was unsold at origin. Therefore, the grievor's claim was continuing and existing as of that date.
The Bargaining Agent representative submitted that the Treasury Board Secretariat informed departments that it would apply section 8.3 with discretion, on a case-by-case basis for files registered prior to October 1, 2008. The Bargaining Agent representative suggested that it is doubtful that a case with more merit than the grievor's can be found. The grievor invested over $70,000 in this house to accommodate the grievor's disabled mother. Although all reasonable efforts were made to sell the house, it took approximately 19 months to sell the house and at a greatly reduced price. The grievor travelled every weekend because the grievor's elderly disabled, dependant mother was still living in the house until August 2008. Since the house was not sold, the grievor had no choice but to maintain the vacant house for approximately 8 months at an expense of about $8,000. The assistance that the grievor received for close to 2 years of double residence was a small fraction of what the grievor's actual costs were.
Departmental Presentation
The Departmental representative submitted that the timelines of the events in this matter are essential to the department's position that section 8.3 of the Relocation Directive is not applicable.
The Departmental representative submitted that authorization and registration of the grievor's relocation occurred prior to the changes in the NJC Relocation Directive that would have entitled her to the 10% Home Sale Assistance.
The Departmental representative submitted that the TBS informed departments that eligibility to section 8.3 would only be for files authorized to the Relocation Service Provider (RLRS) on or after October 1, 2008 and that all other cases would have to be submitted as a Business Case and would be reviewed on a case-by-case basis by Policy Authority at TBS.
The Departmental representative reiterated that the grievor is not entitled to receive the 10% Home Sale Assistance because her registration with RLRS occurred well before the new section 8.3 came into effect.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the employee was treated within the intent of the NJC Relocation Directive.
It was agreed that only relocation files registered with the Contracted Relocation Service Provider on or after October 1, 2008 are eligible for the 10% Home Sale Assistance as per section 8.3 of the Directive. The grievor's file was registered in August 2007, 13 months before the assistance became effective. The Committee reiterated that it was not the intent of the parties to grant retroactive assistance. As such the grievance was denied.