November 8, 2017
41.4.117
Background
The grievor works for Department A. Prior to the grievor’s relocation to City B, Province Y, the grievor lived and worked for the same Department in City A, Province X.
On May 16, 2016, the grievor was granted leave without pay (LWOP) for spousal relocation as the grievor’s spouse accepted an employment offer in the private sector in City C, Province Y. On June 9 2016, the grievor was offered a position at the headquarters office of Department A in City D. Upon receipt of the initial letter of offer, the grievor noticed that there was no entitlement under the NJC Relocation Directive. As such, the grievor inquired with Management, which subsequently issued an amended letter of offer, dated Aug. 25, 2016 that qualified the grievor for relocation expenses. The grievor commenced work in City D on July 11, 2016.
Although the amended letter of offer stipulates that the grievor is eligible to receive financial assistance under the Directive, the Department, Treasury Board and Brookfield had on-going discussions about whether or not the grievor ought to have been eligible under the Directive as the grievor was on LWOP at the time of the offer and hence, relocated under the priority of transfer of spouse. That issue was ultimately resolved in favour of the grievor.
The Employer determined that, as the grievor accepted a job offer in City D but relocated to City B, a city outside of the grievor’s place of duty, this did not align with the intent of the Directive and hence, the grievor is not entitled to the provisions of the Directive. The grievor argued against the Employer’s position and explained that the place of residence was selected to balance the working locations of the grievor and the grievor’s spouse in order to enable the accessibility of both locations of work for the household.
It is to be noted that the grievor was not reimbursed any relocation expenses and is commuting on a daily basis, at the grievor’s own expense, to and from City D.
Grievance
The employee is grieving the refusal of the Employer to pay for relocation expenses as provided for in the Directive.
Bargaining Agent Presentation
The Bargaining Agent representative referred to the definitions of ‘relocation’ and ‘place of duty’ and argued that those definitions must be interpreted more broadly. The representative explained that the definitions must be considered in light of the Directive’s principles and that it must be interpreted in a manner that provides for discretion and latitude, which is fair, reasonable and accounts for modern relocation practices. In the grievor’s case, the family’s relocation needs were to rent a house in City B, which is midway between the grievor’s spouse’s work in City C and the grievor’s in City D. As such, the principles of the Directive require that the definition of ‘place of duty’ be interpreted to incorporate the grievor’s family relocation needs.
The Bargaining Agent representative further indicated that any limitations to the Directive are published and as there are no limitations other than those prescribed under subsection 1.4.5 of the Directive, the grievor should be allowed to relocate to City B as the grievor complies with the 40 kilometre rule. In fact, the grievor’s new residence is much closer than 40 kilometres to the new work location than the previous residence in Province X. The representative indicated that there are no decisions from the NJC or the Federal Court which assert that an employee must relocate his home to the same neighbourhood or the same city as the place of duty in order to be eligible for relocation expenses. The Bargaining Agent representative also noted that in the alternative, there is discretion under subsection 1.2.5 of the Directive to reimbursed relocation expenses under exceptional circumstances. As the grievor meets the eligibility criteria for relocation as the grievor lives within commuting distance of work, regularly commutes to work, and that the home location meets the particular needs of the grievor’s family, relocation expenses should be covered by the Department.
Departmental Presentation
The representative noted that the Directive is silent on what is considered a reasonable distance from the employee’s new principal residence to the new place of duty in order to be eligible for relocation. It is argued that the region the grievor and the grievor’s family chose to move to is outside of the grievor’s new place of duty (approximately 200 km), which is a considerable distance for a daily commute. It is the position of the Departmental representative that if the intent is to regularly commute from City B to City D, there are concerns from a health and safety perspective. It was indicated that the Department cannot, in good conscience, authorize relocation assistance that would place an employee in the position to commute for two hours following the end of a full work day.
Furthermore, the departmental representative acknowledged that the grievor made the decision to locate the principal residence to City B, following the decision to deny relocation assistance. Should the employee have known about any distance limitations, it would have factored into the family’s decision as to where they choose to select their principal residence. However, it is the contention of the representative that since the grievor knew that Management was seeking clarification of the grievor’s eligibility that the grievor ought to have known that the decision to move to City B without pre-authorization could pose a risk to the grievor’s eligibility, which is contrary to paragraph 2.2.2.2 of the Directive. The representative concluded that the grievor’s decision to continue with the move, with or without relocation assistance to City B, could be perceived that the grievor’s personal choice was to select City B as principal residence, regardless of whether the selection of this city was eligible for relocation assistance. In conclusion, the grievor made the personal decision to relocate to City B, which falls outside of what is considered to be a reasonable distance from the grievor’s new place of duty in City D. As such, the Departmental representative maintained that the grievor’s relocation was treated within the intent of the Directive.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the grievor was not treated within the intent of the NJC Relocation Directive. As such, the grievance is upheld.