June 15, 2011
41.4.32
Background
The employee grieved the employer's decision to use the lesser of two salaries to calculate entitlements even though both the grievor and the spouse were relocated to the same department. The employee also grieved the fact that mistakes had occurred in the calculation of the entitlements which later resulted in the recovery of an overpayment.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the grievor unfairly bore the burden for errors made the employer and the contracted relocation service provider (CRSP).
The Bargaining Agent representative indicated that the grievor's spouse, and later the grievor, received offers of employment from the employer. However, the grievor's letter of offer was erroneously issued first, on August 26, 2008. As a result, the employer used the grievor's position to calculate financial allowances to the detriment of the couple. The bargaining agent representative maintains that, had the employer issued the letters of offer in the correct order, the spouse's higher salary would have been used to establish the financial allowances.
The Bargaining Agent representative stated that the employer committed a further mistake by providing the CRSP with the first increment of the GT-07 salary range ($74,813) when in fact, the grievor's salary on the date of appointment was at the first increment of the GT-06 level ($65,283).
This error was compounded by the CRSP's miscalculation of the grievor's transfer allowance entitlement. Rather than divide the grievor's yearly salary by 26 to determine the two-week salary total, the CRSP divided it by 12 to obtain a monthly salary total.
The Bargaining Agent representative indicated that the grievor was contacted by the CRSP on October 8, 2009, following an audit of the file, to inform the grievor of the overpayment and requirement to reimburse $1963.60. The grievor was again contacted on October 20, 2009 following the discovery that the employer had provided an incorrect salary amount. At this time the grievor was informed that a reimbursement of $2328.59 was in order.
The Bargaining Agent representative explained that the grievor had used the monies provided to do a mortgage interest buy down. It was submitted that the grievor made informed financial decisions based on counsel received from the CRSP and the employer – the resident experts. It was noted that the grievor's decisions would have been different had the correct information been received. The bargaining agent representative therefore submitted that the employer and the CRSP should bear the burden of their errors.
The Bargaining Agent referenced section 1.2 of the NJC Relocation Directive which states that, "…in any relocation, the aim shall be to relocate an employee…while having a minimum detrimental effect on the employee and family…" The representative also highlighted the employer's responsibilities under sections 2.2.1.5 and 2.2.1.6 of the directive.
Departmental Presentation
The Departmental representative indicated that the grievor's letter of offer had been produced prior to that of the spouse in an effort to accommodate the grievor. The employer sought to expedite spousal reunification and had no malicious or punitive intentions. The departmental representative noted that under the directive, only the grievor's salary can be used to calculate entitlements. Likewise, the grievor cannot file a grievance on behalf of the spouse and the entitlements received or not received.
It was acknowledged that both the employer and CRSP had erred in their calculations of the grievor's transfer allowance. However, section 2.2.2.11 of the directive clearly outlines the responsibilities of relocating employees with respect to overpayments resulting from administrative errors and the need for reimbursement.
The Departmental representative explained that a repayment schedule was negotiated with the grievor and that the overpayment has been fully recovered by the department.
The Departmental representative indicated that the grievor signed the Consultation Checklist which stated "I acknowledge that I have been counseled on all items checked above." In addition, the grievor initialed beside the transfer allowance amount. As such, the onus was on the grievor to correct the consultant as the grievor would have recognized that the sum was more than double her two-week salary.
The Departmental representative submitted that the department's responsibility with respect to providing relocation assistance is limited. Although the department coordinates with the CRSP, it is the latter's responsibility to explain the relocation process and entitlements in detail with relocating employees.
The Departmental representative noted that although administrative errors were made on the part of the employer and CRSP, the grievor is not entitled to benefit from these. Consequently, the overpayment was recovered in accordance with the directive and section 155.3 of the Financial Administration Act.
Executive Committee Decision
The Executive Committee noted that the NJC Relocation Committee could not come to an agreement on the intent of the directive in this case. The Executive Committee considered the Committee's report and could not reach consensus. As such, the Committee reached an impasse.