February 26, 2014
25.4.158
Background
The employee, who was seconded from one department to another, was assigned to City A in a position from September 8, 2008 to June 26, 2012.
The principal residence of the employee was rented before leaving for City A. The tenants' lease expired in February 2012 and the lease was extended on a month-to-month basis. The tenants informed the grievor at the end of March 2012 that they would be vacating the premise at the end of April 2012. The principal residence was therefore vacant for the months of May and June 2012. The principal residence was not actively market for the months of May and June 2012 as the grievor was returning to Canada at the end of June 2012 and the condo corporation regulations state that the property cannot be leased for a period of less than one year.
The grievor's case was brought forward to Working Group B for a decision on a waiver of shelter. Working Group B denied a waiver of shelter as it was deemed that the employee could not lease the residence as result of a personal situation (condominium regulations) and that the Employer should not be responsible to offset these costs.
The employee is grieving the Department's decision.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that it was not feasible for the grievor to meet the requirements to actively look for a tenant, for given the availability period of only two months would be unrealistic to expect a potential tenant to invest the time and money for such a short time period. Moreover, it would have been a futile attempt, given the condominium association's bylaws that do not allow for leases of less than one year. The principle of comparability was raised, noting that employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada. The intent of FSD 16 – Assistance for a Principle Residence, is clear in that an employee should not have to incur the cost of two rents as a result of serving at a post outside Canada. The representative submitted that FSD 16.4.2 is applicable as it permits the application of a waiver of shelter under certain situations, is meant for short-term and unexpected situations that are out of the employee's control and normally for a maximum period of nine months. Notwithstanding, it was noted that the employee's situation is unique. The representative noted that as per the introduction to the FSDs, consideration should be given to situations which may arise which are not specifically dealt with in the FSDs, but which fall within the overall intent of the Directives. Therefore, in light of the circumstances, the Bargaining Agent representative maintained that the grievor was not treated within the intent of the Directive, and as such requested that the grievance be granted.
Departmental Presentation
The Departmental representative noted that, while the Department agrees that it was through no fault of the grievor that the tenants decided to leave the condominium two months before the return from the posting, it is the employer's position that the grievor was treated within the intent of FSD 16 – Assistance for a Principle Residence. The representative continued, noting that employees must demonstrate that they are actively looking for a tenant in order to be granted shelter waiver under the provisions of FSD 16.4.1, which explicitly states "while a new tenant is located." The purpose of this requirement is to ensure that the clause is applied only when the employee has made every effort to avoid having a vacant principle residence. In this case, the grievor did not look for a tenant, nor the condominium was actively marketed for rent, because under the condominium corporation regulations, the grievor could not rent the property for less than a one year period. This was a known risk to the grievor at the time the assignment was accepted and when it was chosen to lease the property during the assignment abroad. This is a personal situation and responsibility, and this is not the Crown's responsibility to offset costs which are incurred as a result of a personal contract. It is the Employer's position that the argument of comparability cannot be used in this case as the condominium could not have been rented for a period of less than one year had the grievor been in Canada or anywhere else due to the condominium regulations. Therefore, for the reasons mentioned above, the grievance and the requested corrective measures should be denied.
Executive Committee Decision
The Executive Committee noted that the Foreign Service Directives Committee could not come to an agreement on the intent of the Directive in this case. The Executive Committee considered the Committee's report and agreed that the grievor had not been treated within the intent of the Directive as the grievor had home ownership costs. As such, the grievance is upheld.