April 25, 2013
41.4.51
Background
The employee, was advised in autumn 2009 that there would be a transfer from the current city to a new one effective March 22, 2010. On April 29, 2010 the Contracted Relocation Service Provider (Brookfield) sent the employee a relocation claim to be signed and returned. The claim related to Temporary Dual Residence Assistance (TDRA) provided under section 8.13.2(b) of the NJC Relocation Directive. The employee returned the signed form to Brookfield as requested.
On March 9, 2012, Brookfield informed the employee that a review of the file revealed an error in the calculation of the TDRA. Brookfield advised the employee that the full dinner rate was received for the period identified rather than 65% of the dinner rate as outlined in the Directive. The employee was further informed that the overpayment was to be returned.
Bargaining Agent Presentation
The Bargaining Agent representative explained that an operational need was identified in City A therefore the grievor volunteered for a transfer. During the relocation process, Brookfield addressed written communication to the grievor in English despite being a unilingual Francophone. As a result, the grievor was forced to decipher the communication. Furthermore, Brookfield's explanation of the relocation process was general in nature and did not include a detailed explanation of the amount of entitlements under the Directive, meal allowances included.
The representative indicated that as Brookfield was contracted to provide relocation assistance to the grievor, their expertise was relied on with respect to the calculation of entitlements. Therefore when reviewing relocation documents no questions were asked on calculations but the grievor focused on areas that could be identified as correct or not. The representative noted that throughout the relocation the grievor acted in good faith, correcting errors when they were found. In one particular instance, a Brookfield representative presented with a claim for various relocation expenses and entitlements for signature however the claim included the expenses for two children. The grievor contacted the representative to clarify that only one child would be relocating and, as a result, the claim should be adjusted accordingly. The representative submitted that actions such as this demonstrate the grievor's integrity and good faith.
The representative indicated that the grievor completed the relocation in June 2010 and the last reimbursement received dates to September 2010. As such, the grievor considered the relocation to be complete as of the latter date. Section 2.13.1 of the Directive clearly states that there is a one year time limit to receive reimbursement on a relocation from the date of registration with Brookfield. The representative submitted that this time limit should apply equally to both the Employer and employees. The Employer should therefore be precluded from seeking repayment of an overpayment two years after the completion of the grievor's relocation. Furthermore, the Employer, in its second level reply, recognized that Brookfield had made an administrative error. The representative suggested that the grievor should not be liable for errors made by a third party.
The representative noted that the sum sought by the Employer is not insignificant to the grievor. To force the repayment of the funds would cause the grievor financial hardship as the utilization of the line of credit would be necessary. This is particularly true as the Employer did not provide the grievor with repayment options. The representative also cited Lapointe v. Treasury Board of Canada (2011-PSLRB-57), in which the PSLRB found the Employer's administrative error in identifying the grievor's correct salary and the subsequent four year delay prior to recovery to be unreasonable.
Given the grievor's demonstrated good faith, the Employer's omission of the administrative error on Brookfield's part, the financial burden and provisions of section 2.13.1 of the Directive, the Bargaining Agent representative asks that the grievance be upheld.
Departmental Presentation
The Departmental representative indicated that while it is unfortunate that an overpayment occurred, the Employer is nevertheless legally obliged to recover the sum. Section 8.13.2(c) provides for 65% of the dinner rate however the grievor received 100% of the rate in error.
The representative indicated that Brookfield informed the grievor of the error and the requirement to repay the funds as soon as it became aware of it. The representative indicated that section 2.2.2.11 of the Directive stipulates that at the end of the relocation process, if an employee has received funds to which they were not entitled, they must make full restitution immediately upon notification. The grievor was advised on multiple occasions beginning with the initial notification on March 9, 2012, of the obligation to reimburse the funds yet to this date has not done so.
With respect to the Bargaining Agent representative's submission that a one year time limit should apply to the relocation process, the Departmental representative submits that the Directive does not provide for such a limitation. The representative noted that while the Directive states that there is a one year time limit for reimbursement it is silent on the subject of recovery of overpayments.
The representative submitted that the two year delay is within accepted time limits established through existing jurisprudence. The Supreme Court of Canada's decision in Markevich v. Canada (2003 SCC 9), identifies a six year time limit as outlined in section 32 of the Crown Liability and Proceedings Act.
The Departmental representative indicated that despite the overpayment, the Employer is of the view that the grievor was treated within the intent of the Directive. Upon discovery of an overpayment the Employer is legally obliged to begin recovery measures. The representative therefore requested that the grievance be denied.
Executive Committee Decision
The Executive Committee considered the information provided by the Relocation Committee and noted that it could not come to an agreement on the intent of the Relocation Directive in this case.
However, the Committee did agree that, through no fault of the grievor's own, an overpayment occurred as the grievor should have received 65% of the dinner rate while on TDRA as per section 8.13.2(c) of the Directive. The Committee also found that the grievor did not receive adequate service from the Contracted Relocation Service Provider as service was not provided in the grievor's official language of choice and the latter ultimately erred in the calculation of the grievor's entitlements.
The Executive Committee agreed that the Employer is legally obliged to recover the sum in accordance with the Financial Administration Act. The Executive Committee noted that a reasonable arrangement should be made between the employee and the Department with respect to the timeline for the recovery. As such, the grievance is denied.