February 26, 2014
41.4.61
Background
The employee, who was based in City B, accepted an assignment in City A from September 26, 2011 to September 21, 2012 which resulted in being on travel status. The employee travelled to City A with the entire family given the children's age, and they resided in rental accommodations. In order to satisfy mortgage and insurance requirements, the home at origin was rented from November 2011 to May 2012. In March 2012, a permanent position in City A was offered and accepted which entitled the employee to relocation assistance.
Bargaining Agent Presentation
The Bargaining Agent representative explained that the grievor rented out the furnished home at origin out of necessity. At no point did the grievor consider the home to be an income property as it was rented below market value, the lease was for a short period of time and the grievor intended to reoccupy the home during the summer of 2012.
The representative indicated that when the grievor accepted the deployment to City A. There was an understanding relocation assistance would be received. Should the ineligibility to receive sale benefits been know, the grievor may not have agreed to relocate.
The representative stated that the grievor informed the Contracted Relocation Service Provider (CRSP) of the situation and the fact that the home in City B had been rented during the initial information session. Likewise, the appraisal report, dated March 30, 2012, clearly indicated that the home was occupied by tenants. It was submitted that the CRSP failed to inform the grievor that there would be no entitlements to full relocation assistance as the home was no longer considered the principal residence. The representative noted that throughout its communication, the CRSP conducted itself in a manner which would have understandably led the grievor to believe that complete benefits will be received. It was suggested that if the grievor was not eligible to receive benefits related to the sale of the home the CRSP should not have continued to communicate with the grievor on the subject of the sale nor request supporting documentation.
The representative also noted that the CRSP's failure to inform the grievor of the entitlements in a timely manner prevented the mitigation of a negative financial impact. The grievor's tenants had expressed an interest in staying on beyond the initial lease period and in signing a long-term lease. However, this option was declined in favour of selling the home as it was understood that the grievor would be eligible to receive financial assistance with the sale. Ultimately, the grievor's home was sold on August 22, 2012, $10,500 below its appraised value.
The representative indicated that section 1.2.5 allows for the reimbursement of expenses not normally covered by the Directive under exceptional circumstances. It was submitted that the grievor's case rightly constitutes an exceptional circumstance. Additionally, section 1.2.6 does not specifically preclude the reimbursement of expenses incurred because of misinterpretation or mistakes.
The Bargaining Agent representative therefore requested that the grievance be upheld.
Departmental Presentation
The Departmental representative explained that the grievor was not eligible for sale assistance benefits as the occupancy requirements outlined in the Directive were not meet. Section 8.4 requires that an employee, his/her dependants or both must occupy the residence as the principal residence immediately prior to the official notification of the posting in order to qualify for reimbursement of expenses associated with the sale of the property. Furthermore, the Directive stipulates that a dwelling must have been occupied continuously at the time the relocation was authorized in order to meet the definition of "principal residence". It was submitted that as the grievor did not meet the occupancy requirements and the home did not meet the definition of principal residence the grievor was not eligible for sale related benefits under the Directive.
The representative indicated that, contrary to the grievor's assertion, at the time of the registration the CRSP was not informed that the home in City B was income producing. Following the discovery that the home could not be considered a principal residence, the CRSP wrote on May 31, 2012 informing the grievor that neither the Temporary Dual Residence Assistance or home sale assistance were available. A similar such conversation took place on June 18, 2012 and was followed by an email of the same date. It was noted that several months passed between the time the grievor was informed of the ineligibility and the sale of the home, giving the grievor ample time to reconsider the decision to sell and to seek other options.
It was noted that section 2.2.2.7 of the Directive makes it clear that employees are responsible for understanding their entitlements as well as seeking clarification from the Departmental National Coordinator in the event of contradictory information.
The representative also indicated that while on assignment in City A the grievor was covered by the Travel Directive. Therefore, while the grievor received a monthly rental income from the home in City B, the Employer was reimbursing the living expenses in City A. Consequently, the grievor did not pay living expenses in either location for a period of 6 months.
Finally, the representative submitted that the grievor's situation does not qualify as an exceptional circumstance as section 1.2.5 of the Directive is not intended to grant the Program Authority with the discretion to reimburse costs when the employee's specific conditions do not match those explicitly described in the Directive.
The Departmental representative therefore requested that the grievance be denied.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the grievor had been treated within the intent of the Directive as the grievor did not satisfy the occupancy requirement identified in section 8.4 and the home in City B did not qualify as the principal residence, as defined in the Directive.
The Committee nonetheless recognizes that there may have been some miscommunication between the grievor and the CRSP during the relocation process. As such, the grievance is denied.