December 18, 2013
21.4.1053
Background
The employee's position requires training for which travel outside of the headquarters area is necessary. The employee's partner is a long distance truck driver who is away from home for extended periods of time. As a result of this unique situation, the employee was forced to assume, on three occasions, the cost of child care while on government business travel, for a total amount claimed of $800.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor had received written communication from the local manager requesting, approving, nominating and/or directing the grievor to attend training sessions and/or forums. It was explained that in the case of one of the subject forums the Executive Head, Service Management authorized the reimbursement of meal and accommodation expenses incurred by employees traveling within the headquarters area when such reimbursements are only permitted under the Travel Directive in exceptional circumstances. In contrast, the reimbursement of childcare expenses was denied as the grievor was not deemed to be a sole childcare provider under the Directive. The representative suggested that if a broad interpretation of the Directive may be used to defray meal and lodging expenses for a group of employees then a broad interpretation of section 3.3.5 is in order.
The representative indicated that as the Directive does not define the term "sole caregiver" one must rely on the definition provided by the dictionary. Drawing on the definition of "sole" as provided by Webster's Dictionary, the representative suggested that to receive dependant care an employee must be single or unmarried. The representative therefore submitted that such a finding would necessarily mean that the Directive is contradictory and creates a situation that favours public servant couples over those where one partner is employed outside the public service. It was noted that section 3.3.5(b) provides for the reimbursement of dependant care expenses when "two federal employees living in the same household are the sole caregivers of a dependant…" The representative indicated that two persons cannot simultaneously be "sole caregivers" as sole by definition indicates one. Furthermore, to reimburse expenses only when both caregivers are federal public servants is a discriminatory practice.
The representative also stressed that the principles of the Directive emphasize the need to achieve fair, reasonable and modern travel practices. Likewise, the purpose and scope of the Directive is to ensure fair treatment of employees required to travel on government business by providing reimbursement of reasonable expenses necessarily incurred while on travel status and by ensuring that employees are not out of pocket. In each of these instances the grievor was on authorized government business travel and dependant care expenses necessarily resulted from this travel. The expenses claimed are reasonable and the Employer's decision not to reimburse these has created a significant financial burden for the grievor.
The representative indicated that the Executive Committee agreed, in its communiqué entitled Dependant Care Expenses – Clarification of "Sole Caregiver" (Travel Directive – Dependant Care) – 2006, to recognize that the expression "sole caregiver" may be interpreted to include individuals who are involuntarily separated as defined by the Canada Revenue Agency (Income Tax) which defines involuntary separation as: "Although you have shown your marital status on your return as married or living in common law, you and your spouse may have occupied separate principal residences for part or all of the year for medical, educational or business reasons." The representative noted that the grievor and the partner are involuntary separated for business reasons several times as year as a result of the partner's employment. Consequently, the grievor's partner's principal residence is his long haul truck. The representative submitted that past Public Service Labour Relations Board precedent (2006 PSLRB 136) has supported the reimbursement of childcare expenses to a married person whose partner is unavailable to care for dependants.
Departmental Presentation
The Departmental representative explained that the grievor was required to attend training on the first two occasions in question whereas the third session, from October 24 to 26, 2011 was optional. The representative stated that the grievor was informed in three separate instances that reimbursement of dependant care expenses was not possible as the criteria set out in section 3.3.5 of the Directive was not met. More specifically, the grievor was not considered a sole caregiver as caregiving responsibilities were shared with the partner who is not a federal government employee on travel status. The grievor initially received this information on January 26, 2011 and it was reiterated on January 28 and July 29, 2011.
The representative submitted that the definition of "sole caregiver" as stated in the communiqué Dependant Care Expenses – Clarification of "Sole Caregiver" (Travel Directive – Dependant Care) – 2006 does not apply to the grievor's situation. It was noted that the partner's truck cannot be considered a separate principal residence as the Income Tax Interpretation Bulletin – Principal Residence, dated July 17, 2003, defines "principal residence" as a housing unit, a leasehold interest in a housing unit, a share of capital stock of a cooperative housing corporation or land. Therefore the Department cannot consider the grievor to be a sole caregiver.
It was further suggested that past precedent (2009 PSLRB 69) has held that short absences from the household by one caregiver do not transform the other caregiver into a "sole caregiver".
The representative also submitted that had the intent of the Directive been to recognize other circumstances where dependant care expenses were eligible for reimbursement, the parties negotiating the Directive would not have identified two specific criteria for reimbursement.
The Departmental representative therefore requested that the grievance be denied.
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 needed to attend training sessions for the purposes of the job and was involuntarily separated from the partner for extended periods. As such the Executive Committee upheld the grievance on an exceptional basis and noted that reimbursement should be provided for all three occasions listed in the grievance as to the limits outlined in section 3.1.5 in the Directive.