April 12, 2012
21.4.1031
Background
The employee is grieving the Employer's decision not to pay for the additional costs incurred by the employee while on training as directed by management.
Bargaining Agent Presentation
The Bargaining Agent representative explained that the grievor's position as a Benefit Officer requires the grievor to attend training to maintain and improve skills. This training is normally offered outside of the grievor's home province. As the grievor's spouse is a long-haul truck driver the spouse is away from home seven to 12 days at a time. This leaves the grievor to make childcare arrangements for the children for the periods while on travel status.
The grievor meets the definition of sole caregiver as the spouse is required to maintain a separate residence as a result of employment. While travelling for work the spouse uses a living space in the vehicle which includes a bed, fridge, television, telephone and microwave and incurs separate expenses related to this household.
The Bargaining Agent representative indicated that both the wording of the Directive and the Employer's interpretation of it are discriminatory and disadvantage the grievor on the basis of marital and family status. The Employer failed to consider the grievor to be a married sole-caregiver and because the grievor and spouse share a household and therefore, subjected the grievor to an adverse treatment based, in part, on marital status. Likewise, the grievor was disadvantaged because of the specific family situation.
The Employer is not in compliance with the Directive as it has not recognized recent decisions concerning dependant care. The representative referenced "Umar-Khitab v. Treasury Board" (2006-PSLRB-136) in which the adjudicator determined that sole caregiver should be established in the individual circumstances of each case and that it is not a static but a dynamic role. The adjudicator further determined that marriage is not an automatic bar to entitlement and that a broad, liberal and inclusive interpretation of the Directive's provisions is necessary to achieve the intent of the Directive.
In addition, the representative amended the desired corrective action to include childcare expenses incurred in September and November 2010 as well as March 2011. The representative indicated that the Employer was provided with documentation on these during the second level grievance hearing.
Departmental Presentation
The Departmental representative submitted that the grievor does not meet the criterion for reimbursement of dependant care expenses as outlined in section 3.3.5 of the Director as the grievor is neither the "sole caregiver" of the children nor is the spouse a federal employee.
In addition, the grievor does not meet the expanded definition of "sole caregiver" as provided for the in the communiqué entitled "Dependant Care Expenses – Clarification of ‘Sole Caregiver'. The communiqué accepts that individuals who are involuntarily separated, per the Canada Revenue Agency (CRA) definition, may be deemed to be "sole caregivers". The CRA definition of involuntary separation requires the occupation of separate principal residences for part or all of the year for medical, educational or business reasons. The separate residence maintained by the grievor's spouse does not meet the CRA definition of "principal residence".
The Departmental representative further noted that in NJC grievance 21.4.969 the Executive Committee determined that section 3.3.5 of the Directive does not provide reimbursement of child care expenses where there is another caregiver, even where that caregiver is temporarily unavailable. The only exception to this exclusion arises when both caregivers are federal employees and both are on travel status at the same time.
The Departmental representative also indicated that the Department was not in receipt of the additional claims the grievor is seeking to add to the corrective action sought.
Executive Committee Decision
The Executive Committee considered the report of the Travel Committee and noted the impasse. The Executive Committee considered the information and circumstances in this grievance and agreed that the employee does not meet the definition of sole caregiver as established in the NJC Travel Directive.
However, the Committee took into account that the grievor had been directed to attend mandatory training and was involuntary separated from the spouse for extended periods due to economic reasons. As such the Executive Committee upheld the grievance on an exceptional basis and noted 4that reimbursement should be provided as to the limits outlined in section 3.1.5 in the Directive.