May 7, 2015
41.4.68
Background
The grievor was assigned to City A, Country X for Department A from August 2009 to August 2012. Department B confirmed that the house in City B was the principal residence while posted abroad. The province taxation administration also approved this designation.
In January 2012, the grievor accepted an indeterminate position in City C for Department C, conditional upon obtaining a reliability security clearance level. The letter of offer stated that the grievor was eligible for relocation expenses. After obtaining the security clearance level required, a second letter of offer was issued and signed in February 2012, confirming the starting date as July 2012. Both letters of offer were issued and signed while the grievor was still posted abroad.
While the grievor and spouse lived abroad, their child, a full time student, stayed in Canada but not in the family residence. As such, the house in City B was rented while the grievor lived in Country X.
Bargaining Agent Presentation
The Bargaining Agent representative stated that the Department was informed by the grievor about the posting abroad and of the residence in City B which was rented out to tenants for the duration of the posting. The representative further noted that the grievor was clearly provided with incorrect information from the Department as despite their knowledge of this situation, the grievor was informed that he would be reimbursed for the relocation expenses.
The Bargaining Agent representative explained that the Department's position, which is that the grievor's residence is an income property as opposed to a "principal residence", defeats the purpose of the FSD 16 and the Relocation Directive as it is common that employees will rent their properties during their rotational assignments to mitigate their financial situation.
The Bargaining Agent representative further noted that the residence occupied by the grievor during the assignment was rented by the crown and could not constitute the principal residence. The grievor identified the property in City B to be the principal residence for provincial taxation purpose.
It is the Bargaining Agent representative's position that the fact that the grievor's assignment terminated prior to the scheduled end date and that the grievor subsequently accepted a position in City C, did not allow sufficient time to relocate back to the residence in City B. If the grievor would have known of the need to occupy the residence in City B for a minimum of one day in order to qualify for relocation, the grievor would have proposed to his new employer to start in August instead of July.
The Bargaining Agent representative indicated that the grievor's tenant's lease prevented the grievor from occupying the principal residence before the relocation to City C. The fact that a notice of non-renewal was sent to the tenants confirmed the intentions to occupy the residence at the end of assignment. The Bargaining Agent representative submitted that the residence in City B has to be considered the principal residence as the crown-held accommodation in Country X does not meet the definition of "principal residence" in the Directive.
Departmental Presentation
The Departmental representative explained that the grievor's City B residence did not meet the definition of "principal residence" as per the Relocation Directive. Neither the grievor nor the dependents resided in the residence prior to the appointment in City C. As such, the Department had no choice other than to consider the City B residence as an income property in accordance with section 8.22 of the Directive. It is the position of the Department that there is no provision in the Directive that allows the grievor to designate the residence both as principal and an income property.
The representative noted that Department C was responsible for the relocation from City B to City C and therefore, the FSDs do not apply. The Relocation Directive is the sole source applicable to the grievor's circumstances. While the Departmental representative admitted that the initial interpretation was incorrect with respect to the reimbursement of all relocation expenses given that the residence in City B was rented by tenants and could not be considered a principal residence, the interpretation was rectified by Brookfield shortly thereafter.
Executive Committee Decision
The Executive Committee reviewed the report of the Relocation Committee and noted the impasse. The Executive Committee considered that the grievor fulfilled the responsibilities pursuant to the Foreign Service Directives; however, in order to meet the obligations to report to a new job was unable to fulfill the responsibilities under the Relocation Directive. The Committee noted that the definition of "principal residence" was not erroneous but that due to the grievor's unique and exceptional set of circumstances, the grievance is upheld.