January 26, 2012
25.4.148, 25.4.149
Background
The employees grieved the department's refusal to pay them the post differential allowance (PDA) in accordance with FSD 58 during their deployment to City A.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that on July 23, 2007, during a meeting with the department prior to posting, grievor "A" was informed verbally of entitlements to FSD 58 – Post Differential Allowance while on posting and that written confirmation would be received at a later date.
While on posting grievor "A" requested the allowance on a number of occasions. On December 6, 2007 grievor "A" was asked to provide the Treasury Board Secretariat (TBS) with a complete breakdown of the components of the Mission Subsistence Allowance (MSA) that grievor "A" was receiving from the United Nations. The Bargaining Agent representative noted that it was not until January 2010 that grievor "A" was finally informed that the FSD 58 entitlements would not be received which was contradictory to the information received prior to posting.
The Bargaining Agent representative argued that the department relied on the following article in the FSDs to deny the allowance: FSD 3 – Application – Instruction 2: In applying Section 3.01(g), care should be taken to ensure that employees: (a) do not receive double benefits, and (b) are not treated more favourably than employees serving outside Canada under the provisions of the Foreign Service Directives.
The Bargaining Agent representative noted that the department clearly forgot to take into account the part (c) of Instruction 2 which states that: and (c) are fully briefed on the specific application of the Foreign Service Directives. Furthermore, there was no posting confirmation between the department and grievor "A".
The Bargaining Agent representative stated that not only was there no posting confirmation in place for grievor "A", grievor "A" was not fully briefed on the application of the FSDs; there is no similarity between the MSA that grievor "A" received from the UN, which reflects an allowance of living expenses incurred, and FSD 58 – Post Differential Allowance which reflects compensation for undesirable living conditions.
Finally, it was argued that other individuals at the post (i.e. United Nations Police Officers, RCMP) are receiving FSD 58 in addition to the MSA.
The Bargaining Agent representative stated that grievor "B" is in an identical situation to grievor "A". However, grievor "C" did have a posting confirmation form, which was signed by grievor "C" but not by the Bargaining Agent representative. The Bargaining Agent representative alleged that grievor "C" was forced to sign the posting confirmation form, which stated that the grievor was not entitled to FSD 58, but was informed verbally that the allowance would be received at a later date.
The Bargaining Agent representative concluded by noting that in accordance with FSD 3 – Instruction 2, in addition to the lack of a posting confirmation form, the grievors were not treated within the intent of the Directive.
Departmental Presentation
The Departmental representative noted that the grievors were treated within the intent of the Directive. The department did not have the authority to pay FSD 58 – Post Differential Allowance as DFAIT is responsible for administering this Directive. Furthermore, TBS came to the conclusion that the grievors were already in receipt of a similar allowance from the United Nations. FSD 3 – Application Instruction 2 states that: In applying Section 3.01(g), care should be taken to ensure that employees: (a) do not receive double benefits, and (b) are not treated more favourably than employees serving outside Canada under the provisions of the Foreign Service Directives. As such, the grievors are not entitled to FSD 58 which is based on the same criteria as the United Nations MSA which is more favourable than FSD 58.
As such, the Departmental representative concluded that the grievors were treated within the intent of the directive and were compensated correctly for their posting in City A.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded that the grievors were treated within the intent of the FSD 58.
It was agreed that with respect to the grievances of grievors A and B, the Directives effective June 1, 2003 to April 1, 2009, were in effect at the time of the grievors' posting. The FSD 3.01 – Instruction 2 states: In applying Section 3.01(f), care should be taken to ensure that employees: (a) do not receive double benefits, or (b) are not treated more favourably than employees serving outside Canada under the provisions of the Foreign Service Directives.
Although the employees did not receive FSD 58, they did receive the United Nations MSA. The amount of this allowance is greater than both FSD 55 – Post Living Allowance and FSD 58 – Post Differential Allowance combined. As such, the employees were treated more favourably than employees serving outside Canada under the FSDs.
It was also agreed that for the grievance of grievor "C", the Directives effective April 1, 2009, were in effect at the time of the grievor's posting. Instruction 2 of FSD 3.01 states: In applying Section 3.01(g), care should be taken to ensure that employees: (a) do not receive double benefits, and (b) are not treated more favourably than employees serving outside Canada under the provisions of the Foreign Service Directives, and (c) are fully briefed on the specific application of the Foreign Service Directives.
The grievor was informed prior to posting, that FSD 58 would not be received (grievor's assignment letter identified that FSD 58 would not apply). The amount of MSA from the United Nations is greater than the combined FSD 55 – Post Living Allowance and FSD 58 – Post Differential Allowance. Therefore, the grievor was treated more favourably than an employee serving overseas under the FSDs.
The Committee also recommended that in the future, the parties should always base comparisons between employees who fall under the FSDs and not other regulations (i.e. MFSIs, etc).
As such, the grievances were denied.