October 12, 2016
25.4.163
Background
The grievor occupied a position and accepted an assignment within the Department, in support of the Canadian Forces, to City A, Country X, for five (5) months.
The grievor is requesting additional benefits in accordance with FSD 8, as well as FSDs 2, 9, 15, 56 and 58.
The Employer’s position is that only subsection 3.4.2 of FSD 3 applied to the grievor’s situation as the grievor’s assignment does not meet the definition of ‘assignment’ in accordance with Section 3.1. As such, the Employer is of the opinion that the grievor is not entitled to the provisions of FSD 8.
Grievance
The grievor is grieving the Employer’s failure to provide all applicable pay and allowances in relation to the assignment outside of Canada.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the issue at hand is whether or not members in support of the CF are entitled to the provisions of FSD 8. In this particular case, the grievor is looking to be compensated in accordance with Sections 8.4 – Incidental Relocation Expense Allowance, 8.15 – Currency Exchange, and Post Specific Allowance (in accordance with the briefing received in advance of the assignment). The Bargaining Agent representative noted that the grievor did receive certain allowances while on assignment in accordance with the FSDs such as shipment of household effects and meal allowances and as such, this clearly demonstrates the Department’s acknowledgement that the grievor is entitled to the provisions of the FSDs.
The Bargaining Agent representative agreed that the grievor was on assignment in accordance with subsection 3.4.2 of the Directive which indicates that the employee is subject to certain provisions of the FSDs, as directed by the Treasury Board and specified in the Memorandum of Agreement (MOA) regarding the payment of certain allowances and benefits to Public Service employees deployed outside Canada in support of the CF. The Bargaining Agent representative then noted that paragraph 4 of the MOA states that “the employee will remain subject to those FSDs applicable to the circumstances encountered. However, the employee is not entitled to any benefit or allowance under the FSD, which is duplicated under the MFSI listed in paragraph 2 of this MOA”. As such, the Bargaining Agent representative is of the opinion that this statement in the MOA would lead one to believe that employees posted in support of the CF are entitled to the FSDs provided they are not pyramiding benefits. The Bargaining Agent representative then indicated that FSD 8.1.2 states that “the provisions of this Directive (FSD 8) apply to all assignments outside Canada, including the USA, of more than 30 consecutive days and less than one year” and an “assignment” is defined under FSD 8 as “an assignment as defined in FSD 3 – Application”. Given this, as it has already been demonstrated that the grievor is on assignment in accordance with subsection 3.4.2, it ought to be evident that the grievor is entitled to the provisions sought under FSD 8.
Finally, the Bargaining Agent representative noted that the Department is in violation of the Purpose and Scope of the Directive, which requires that employees be provided with a detailed briefing with respect to the specific application of those directives and related provisions and procedures which impact on their assignment outside Canada. In the case of the grievor, the briefing(s) and documentation received were inaccurate. Furthermore, it is the Bargaining Agent representative’s prerogative that the Department did not adhere to the principles of the Directive. As such, the Bargaining Agent representative maintained that the grievor was not treated within the intent of the Directive.
Departmental Presentation
The Departmental Representative contended that the grievor was treated within the intent of the FSDs. FSD 3 defines in which circumstances the Directives apply to an employee, according to his/her type of assignment.
The grievor was considered to be on assignment in accordance with subsection 3.4.2. Given this, the grievor is subject to the provisions of the MOA which includes a limited number of Military Foreign Service Instructions (MFSIs). It is the Departmental Representative’s prerogative that paragraph 4 of the MOA, as stated above in the Bargaining Agent representative’s presentation, was intended to ensure the continuity of entitlements for employees currently on assignment under FSD 3.1, should they accept a subsequent assignment in support of the CF under FSD 3.4. The wording “will remain” implies that the employee was previously in receipt of entitlements under the FSDs prior to accepting the assignment in support of the CF and will remain subject to those entitlements, provided these are not duplicated under the MFSIs list in the MOA.
The Departmental representative further noted that subsection 3.1.2 of FSD 3 states that “the provisions of FSD 8 – Short-Term Assignments Outside Canada apply for periods where assignments as defined in subsection 3.1.1 ….” Given this, the Departmental representative stated that as the grievor was not on assignment in accordance with subsection 3.1.1, but rather 3.4.2, the provisions of FSD 8 do not apply for the duration of the assignment in question.
Finally, the Departmental representative stated that although the grievor was reimbursed for meals in accordance with MSFI 10.2.02(1) – Equitable payments, this was effectively an error and as a result of a lack of clarity within the Department as to how to deal with members living in rented apartments versus barracks and provided with meal rations. Given this, reimbursement for meals does not constitute as a demonstration that the Department is in agreement that the grievor is entitled to the provisions of FSD 8.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded that the grievor was treated within the intent of the Foreign Service Directives in that the Memorandum of Agreement referred to in FSD 3 applied in the grievor’s case, and not FSD 8. As such, the grievance is denied.