August 31, 2011
41.4.35
Background
The employee grieved the employer's decision to deny "Home Sale Assistance (HSA)" as per section 8.3 of the NJC Relocation Directive.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor signed a letter of offer on August 5, 2009 for a position headquartered in Thunder Bay, Ontario. An email dated July 14, 2009 sent to the grievor from Royal LePage Relocation Services (RLRS) confirmed that the relocation had been authorized. The representative maintained that throughout the relocation process, the grievor did the utmost with the resources available to ensure that the relocation was done per the NJC Relocation Directive, and sought advice from RLRS when necessary. Though the grievor read all the information regarding the Relocation Steps outlined in the RLRS website, there was no mention of HSA under the section "Dispose of Residence."
The grievor inquired about HSA, and was informed by the Contracted Relocation Service Provider that though usually prior approval is required, the forms could be submitted for consideration following the sale of the home. The grievor was also informed by the RLRS consultant that a business case would be needed to support the request for HSA. The grievor submitted the business case in September 2009, however was informed in March 2010 that it was denied under section 8.3, as the grievor sold the home for less than 95% of the appraised value without obtaining prior approval. The representative noted that at no time did RLRS indicate that prior approval was mandatory to obtain reimbursement. As such, the grievor received misleading and inaccurate information. According to section 1.2.2, the Employer and RLRS had an obligation to provide information regarding relocation, including HSA conditions/requirements. Their failure to do so resulted in a significant loss to the grievor.
The Bargaining Agent representative concluded by stating that the grievance should be upheld and that the full reimbursement of HSA be granted. Alternatively, the grievor should at minimum receive a reimbursement of the difference between the sale price and 95% of the appraised value of the home.
Departmental Presentation
The Departmental representative indicated that the grievor was treated within the intent of section 8.3 the Directive, which states that if an employee wishes to accept an offer of purchase for the principal residence at origin that is less than 95% of the appraised value, the employee must first obtain the approval of the Departmental National Coordinator (DNC). In July 2009, the grievor listed and sold the home. On July 28, 2009, the grievor had his initial RLRS counseling session and received the appraisal of his home. On this same date the grievor accepted an offer of purchase at less than 95% of the appraised value of the home. RLRS reported that the grievor had been counseled to wait for the appraisal report prior to accepting an offer. The grievor accepted the offer without first obtaining the approval of the DNC as required in section 8.3.
In November 2009, the grievor submitted a request for HSA under section 8.3 for the difference between the appraised value and the sale price accepted. The request was denied, as the grievor had not sought prior approval to accepting a sale price below 95% of the appraised value. The departmental representative noted that in accordance with the explicit provisions of the NJC Relocation Directive (section 2.2.2.2 et al), the grievor is personally responsible for expenses related to the low sale price as relocation-related transactions were initiated prior to obtaining authorization.
Furthermore, the Departmental representative noted that given the language of section 1.2.3, the employer may only exercise discretion where it is specifically authorized by the Directive. Section 8.3 limits the employer's discretion to those instances where the employee first seeks and obtains approval to sell below 95% of the appraised value. The department was therefore precluded from providing HSA.
The Departmental representative therefore indicated that 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 exceptional circumstances in this case, the grievor had not been treated within the intent of Directive. Although approval for sale below 95% of the appraised value was not obtained prior to accepting the offer to purchase, it was noted that the grievor had been authorized to list the home before receiving the appraisal report (dated July 29, 2009). The appraisal report would have informed the grievor of the 95% threshold required for HSA. Due to this authorization to list, the Committee felt that the grievor was led to believe that the submission for HSA after accepting an offer to purchase was permissible. As such the grievance was upheld.