June 15, 2011
41.4.34
Background
The employee grieved the employer's decision to deny full benefits under the NJC Relocation Directive.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the essence of the dispute lies in whether the said house can be deemed the principal residence of the employee. If the Committee deems the house to be considered the principal residence, then the grievor is entitled to full benefits under the NJC Relocation Directive including real estate and legal fees.
The Bargaining Agent argued that portions of the grievor's relocation claim were refused for the following three reasons: a) the grievor was not a resident of the home immediately preceding the listing of the house; b) the home was a rental property immediately preceding the house's listing, and c) the definition of principal residence in the Income Tax Act (ITA).
The Bargaining Agent representative noted that with respect to reason a), the grievor could not have resided in the home immediately preceding the listing of the home as, at the time, it was in the possession of the estranged spouse and the grievor had valid security reasons (a restraining order was in place) for staying away from the property. When the grievor reclaimed the property, a tenant was living on the premise until the end of the agreed upon lease which was established between the tenant and the estranged spouse.
With respect to reason b), the rental agreement was between the grievor's estranged spouse and the tenant. The grievor in no way benefited from the rental of the property.
Finally, with respect to reason c), under normal circumstances, the definition of principal residence under the NJC Relocation Directive and the ITA would apply. However, there are extenuating circumstances in this case, out of the control of the grievor, that resulted in the grievor being unable to meet the stated definition. However, it must be noted that the grievor did hold possession of the home from June 1st onward of that tax year.
The Bargaining Agent concluded by stating that the grievor was not treated within the intent of the directive, specifically the principles of the directive. The grievor acted in good faith and as such the extenuating circumstances should be considered.
Departmental Presentation
The Departmental representative indicated that the grievor was treated within the intent of the directive as the grievor did not meet the definition of "principal residence" or the occupancy requirements under section 8.4 of the directive. The departmental representative noted that the employee did not occupy the home continuously at the time of relocation.
The Departmental representative stated that there were two issues that led to the denial of the employee's claim for reimbursement: a) the property sold was not considered the employee's principal residence as it was not recorded as the permanent address at the department, and b) the property sold was occupied by a tenant, and profit was possibly gained from renting it.
The Departmental representative concluded by stating that although four alternative avenues were explored in order to reimburse the grievor, given the employee's circumstances the directive did not allow for reimbursement. As such, the grievor was treated within the intent of the directive.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the NJC Relocation Committee that concluded that, given the extenuating circumstances in this case, the grievor had not been treated within the intent of Directive. It was agreed that the expenses related to the disposal of the principal residence should be reimbursed. As such, the grievance was upheld.