October 19, 2011
25.4.147
Background
The employee grieved the department's decision to consider July 13, 2007 as the date of permanent departure of the grievor's spouse from the post, for purposes of FSD 2 Interpretation, FSD 15 Relocation, FSD 25 Shelter, FSD 56 Foreign Service Premium and FSD 58 Post Differential Allowance.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor was not treated within the intent of the Foreign Service Directive with respect to the provisions related to the temporary and permanent departure of a dependant. She indicated that the grievor's spouse accepted a position in City A as employment was not available at the mission and further to information from the Foreign Service Client Centre (AES) according to which the grievor's spouse would continue to be considered a dependant if the mission was visited every 25 days despite working full-time in City A. It was noted that the grievor's statement regarding AES could not be verified. The representative also stated that had the grievor been aware of the 8‑month rule they would not have elected to accept the position in City A given the living costs.
The Bargaining Agent representative also submitted that the absence of the grievor's spouse was temporary in nature. It was indicated that the spouse only took a small number of personal effects, rented a furnished apartment on a month-to-month basis and did not receive relocation assistance for the move to City A. The spouse listed the mission (City B and later City C) as the official residence for income tax purposes. Furthermore, the spouse endeavored to respect the 25-day limit by regularly returning to the mission. The representative noted that the spouse continued to participate in diplomatic functions at the missions and was issued diplomatic identification.
The representative stated that the spouse continued to seek employment at mission (City B and City C) however was unsuccessful and maintained the position in City A. It was only following the marital breakdown in March/April 2009 that the spouse permanently departed the mission for City A and later relocated the majority of personal effects.
The Bargaining Agent representative did not dispute the adjustment of Foreign Service allowances to observe the 8-month rule however she submitted that the dates used by the department should be revised. The representative indicated that as the date of arrival at post is used to determine family size for the purposes of Foreign Service allowances it would logically also establish the required 12-month period. As the grievor and spouse arrived at mission in November 2004 the 12-month periods should be as follows: November 2004-November 2005, November 2005-November 2006 and November 2006-November 2007. As the spouse departed for City A on July 13, 2007 entitlements to the Foreign Service Premium and Post Differential Allowance for an additional 25 compensation days, from July 16 to August 17, 2007 should be paid. Allowances should therefore cease on August 20, 2007.
The Bargaining Agent representative proposed, in view of the circumstances, that Deputy Head discretion be authorized to pay the spouse's relocation expenses from City B to City C in accordance with FSD 15.42. It was submitted that the recovery of these expenses would be an obvious injustice to the employee.
The Bargaining Agent representative also indicated that shelter provisions are based on rental accommodation where a tenant would not vacate the principle residence due to the temporary absence of a member of the household. It was submitted that the spouse was legally resident in City B/City C and was residing with the grievor for purposes of determining the shelter cost. Consequently, in accordance with FSD 25.12(a)(ii), the grievor's shelter cost should be reduced from 2 in household to 1 in household effective April 1, 2009.
Departmental Presentation
The Departmental representative explained that the grievor was under the employ of DFAIT since 1981 and that the grievor had been posted at a number of locations. When posted to City B, the grievor was accompanied by the spouse. The Posting Confirmation Form issued in August 2004 confirmed that the spouse was residing at mission and considered a dependant for FSD calculation. Although it was common knowledge that the grievor's spouse had accepted a full-time position in City A in July 2007, no formal confirmation of the departure was provided.
It was also noted that when investigating the grievor's claim regarding information provided by AES, the department was unable to either substantiate or refute the statement. It was however determined that the grievor's enquiry was general in nature and did not address the specifics of the situation.
The Departmental representative submitted that when the grievor's spouse departed for City A in July 2007 to take on a full-time position, the definition of FSD 2.01(a) Accompanied by one dependant was no longer met. The representative stated that the spouse signed a teaching contract for the duration of the school year, September 2007-June 2008, and was therefore not residing with the grievor for a minimum of 8 months of any consecutive 12-month period.
Despite the reasonable efforts made by the grievor and the spouse to see each other regularly the issue is not intent but rather, the interpretation of FSD 2 and whether or not the grievor was treated within the intent of the Directives. It is the department's position that the interpretation of FSD 2 must take precedence over the 25-day rule. Consequently, FSD 15, FSD 25, FSD 56 and FSD 58 should be recalculated in view of the fact that the grievor was no longer accompanied by the spouse as of July 2007.
It was noted that the definition provided in FSD 2.01(a) Accompanied by one dependant does not make reference to the terms "permanent" or "temporary". Rather, it only identifies a minimum period of residence.
The Departmental representative submitted that the use of the Deputy Head's discretion per FSD 15.42 to pay the relocation expenses of the grievor's spouse from City B to City C would create a precedent. Such a precedent would permit DFAIT employees posted abroad to disregard the basic definition of "Accompanied by on dependant".
The Departmental representative stated that while the department recognizes the reasons for which the grievor's spouse sought employment in City A the department remains of the view that the grievor was not placed in a less favourable situation than if serving in Canada. She further explained that considering April 2009 as the date of the spouse's departure from the post would put the grievor in a more favourable position.
The Departmental representative therefore recommended that the grievance be denied.
Executive Committee Decision
The Executive Committee considered the report of the Foreign Service Directives Committee. It was agreed that the grievor was treated within the intent of FSD 15.42 Managerial Discretion, FSD 56 Foreign Service Premium in light of section 56.08(b). It was also agreed that the grievor was treated within the intent of FSD 58 Post Differential Allowance. The Committee noted that the event date for the purposes of both FSD 56 (FSP) and FSD 58 (PDA) should be the same, i.e. July 13, 2007. Therefore, the effective date would be July 16, 2007. With respect to FSD 25.12(a)(ii), the Committee agreed that the grievor was treated within the intent of the Directive however the shelter reduction should be applied effective August 1, 2007. As such the grievance was denied.