November 2, 2012
41.4.47
Background
The employee grieved management's decision to deny Temporary Dual Residency Assistance.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor was verbally assured that Temporary Dual Residence Allowance (TDRA) would be received but was later denied because the grievor did not lower the asking price for home at origin, and did not immediately relocate the dependant, who was attending high school in Location A until the end of June. The representative asked that reimbursement of TDRA be made starting April 16, 2011 until the end of the school year, that any other corrective action appropriate in the circumstances be made, and that the grievor be made whole.
It was submitted that at the first meeting with Brookfield on March 23, 2011, the grievor was advised that an appraisal of the house would need to be done. On April 4, 2011, an appraiser showed up at the grievor's door unannounced while the home was undergoing renovations. The home was appraised between $160,000 and $180,000 which did not take into considerations the renovations that were being done. Once completed, the grievor listed the home with an asking price of $190,000 to reflect the renovations and the housing market. Since there was no real estate agent in Location A, the house was placed on the town's website and listed in a binder at the local bank.
It was stressed that according to the policy, the employee shall relocate "in the most efficient fashion, at the most reasonable cost to the public while having a minimum detrimental effect on the employee and his/her family". TDRA should be provided as the grievor had to maintain two residences due to circumstances outside the grievor's control. The grievor wages are being garnished $270 biweekly until November 2012 to recover costs associated with the grievor's stay in Location B as TDRA was not approved.
The Bargaining Agent representative also submitted that the grievor met all the requirements for TDRA, had a dependant who was a full time student, and actively marketed the home for sale. It was also noted that the NJC Relocation Directive specifically allows for a dependant in high school to remain at the former place of duty to complete the school year.
Departmental Presentation
The Departmental representative indicated that section 7.8 of the NJC Relocation Directive, Temporary Dual Residence Allowance, does not apply as the grievor did not rent the principal residence at origin. Rather, section 8.13 Temporary Dual Residence Assistance should apply to the relocation.
With respect to section 2.2.2.1, it is the grievor's responsibility to read the Directive and consult with the contracted relocation service provider prior to engaging in any relocation activities and that the NJC Communiqué "Questions and Answers – Revised NJC Relocation Directive" stated that "lack of understanding [of the Directive] is not a reasonable excuse for failure to properly apply the Directive." It was noted that the approval the grievor received from the contracted relocation service provider on April 4-5, 2011 did not imply that the grievor did not have to adhere to the conditions of the Directive.
The Departmental representative also submitted that the grievor's relocation was not in accordance with section 2.2.2.2, since the grievor did not obtain written authorization for TDRA prior to relocation. Therefore, the grievor is personally responsible for relocation expenses.
The Departmental representative noted that one of the eligibility conditions for the TDRA is to actively market for sale the principal residence. In order to be considered actively marketed, the listing price must be consistent with the appraised value and the employee must act in good faith to dispose of the residence. The listing price was not set in accordance with the appraisal and a second appraisal was never requested, putting into question the grievor's good faith.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the grievor was not treated within the intent of the NJC Relocation Directive. The Committee agreed that the intent of the Directive in the area of section 8 Temporary Dual Residence Assistance for home owners is that in order to qualify for assistance, relocating employees must be actively marketing the property at origin. In this case, the employee listed the house somewhat significantly higher than the recommended list price. However, the grievor did not refuse a reasonable offer and the property was sold within 90 days. Temporary Dual Residence Assistance should have been granted for commercial accommodations from the date the grievor's home at origin was listed until June 9, 2011.
In addition, the Department is to ensure that interim accommodation, according to section 5.6, is approved from the date the grievor arrived in Location B to the date the home was listed. It is noted that the grievor is not eligible for assistance under section 8.13.3 as Temporary Dual Residence Assistance cannot be claimed at both locations. As such, the grievance was upheld.