April 19, 2018
41.4.122
Background
The grievor works shifts and has been employed by Department X for over 30 years. The grievor lived in City A, Province Y and deployed to City B, Province Z on October 1, 2015.
On or about the registration date with the Contracted Relocation Service Provider (CRSP), the grievor undertook renovations on the grievor’s property and hence, the sale of the residence at origin was delayed. In addition to the renovations, the grievor indicated that the grievor’s spouse is disabled. In light of the above, the grievor requested an extension to the one year time limit to complete the relocation.
On June 30, 2016, the Department provided the grievor’s business case to Treasury Board Secretariat (TBS) for the request for extension of time, which was denied. In its decision, the Program Authority noted that there was very little progress on this file throughout the year and that the business case submitted did not present exceptional circumstances that could justify the extension to be granted.
Although there is no provision in the NJC Relocation Directive for a second business case, on July 28, 2016, when submitting a second business case to Treasury Board Secretariat, the grievor elaborated on the grievor’s spouse’s medical condition in order to qualify for the extension. The grievor indicated that the grievor’s spouse has a medical support system in City A comprised of doctors, nurses, therapists, and specialists which had not yet been organized at destination. It was noted that management supported the extension and was willing to accept any additional costs associated with it. On August 9, 2016, the Program Authority declined to consider the second business case as no new information was provided noting that it had already taken into consideration the spouse’s medical condition when denying the 1st request for extension. TBS further specified that the decision to conduct renovations prior to listing the property was a personal decision and as such, did not grant the extension.
Following the submission of the grievance, the Department contacted the Program Authority on November 15, 2016 and asked that their interpretation be reconsidered based on the Employer’s duty to accommodate. The Designated Departmental Coordinator (DDC) detailed the action of the grievor to find suitable health care assistance for the grievor’s spouse at destination and submitted a medical note from the City A Health Centre confirming that the grievor’s spouse needed extra time to relocate due to medical conditions as a low stress move and a medical provider at destination were required. On December 7, 2016, TBS responded that as the relocation file was closed the Program Authority had no discretion to re-open it and that the Directive does not provide for such mechanism. It also noted that the medical certificate did not address the impact of the spouse’s medical condition on the relocation activities, such as obtaining a Real Estate Agent Assessment on the property and putting it on the market for sale.
Grievance
The grievor is grieving the Employer’s decision to deny an extension for relocation. The grievor indicated that this denial is unreasonable and is in violation of the NJC Relocation Directive. The grievor is further grieving that this decision is discriminatory based on the grievor’s marital status, family status and disability.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor’s health issues and spouse’s physical disability/medical needs caused delays in their ability to relocate from City A, Province Y to City B, Province Z. The grievor was injured in a car accident in 1997 and the grievor’s spouse suffers from several medical conditions which necessitates a support system comprised of doctors, nurses, therapist and specialists. Shortly after accepting the job, the grievor began searching for alternative and replacement medical care for the grievor’s spouse in City B, to no avail. As a result, the grievor commenced work at the new place of duty in October 2015 and the grievor’s spouse stayed behind to continue medical treatment. Over the course of the one-year period to relocate, the grievor worked in City B, but returned back to City A frequently to care for the grievor’s spouse and to oversee renovations the grievor had undertaken to list the house. Although the employer denied the request for an extension of time citing renovations as a personal choice and not an exceptional circumstance, the grievor submits that the medical situation faced by the grievor and spouse was the primary factor in delaying the relocation and should be considered an exceptional circumstance. The Bargaining Agent representative advised that only recently has the grievor found appropriate medical accommodations for the spouse in the new place of duty and that the grievor’s spouse will be relocating to City B shortly.
It is the position of the Bargaining Agent representative that in denying the grievor’s request for an extension of time, the Employer discriminated against the grievor based on the protected grounds of marital status, family status and physical disability. Upon receiving information related to the medical condition of the grievor and the grievor’s spouse, the Employer had a duty to inquire and a duty to accommodate and it failed in both respects. In addition to this, the Employer did not treat the grievor within the intent of the Directive and breached the Directive’s Principles on Respect, Flexibility and Valuing People. The request for an extension of time pursuant to subsection 2.13.1 was unreasonably denied and has caused and continues to cause the grievor and the grievor’s family emotional and financial difficulty.
Departmental Presentation
The Departmental representative explained that shortly after accepting the position in City B, the grievor began the initial steps for relocation by contacting Brookfield in September 2015. At the time, the grievor indicated to the Relocation Officer that the grievor was not yet ready to list the City A home for sale due to the need to complete renovations, but that the home should be listed on the market before the grievor reports to the new place of duty on October 12, 2015. It was noted that the grievor’s spouse would be staying in City A until the house sells, but no other reasons were provided. In March 2016, the Department’s Relocation Services Coordinator contacted Brookfield for an update as there was little activity on the file since it was open. At that time, the grievor indicated being almost ready to have the appraisal and would update Brookfield once the home was listed. On May 29, 2016, the grievor advised the grievor’s Director that the grievor wanted to request an extension of time to the relocation file pursuant to subsection 2.13.1 of the Directive. On June 9, 2016 a Business case was submitted to TBS to request an extension to the one-year relocation timeframe due to several reasons, one of which being the grievor’s spouse’s illness and disability. The Departmental representative submitted that this was the first time the spouse’s medical condition was raised. TBS denied the request and the reassessment request submitted on July 28, 2016. On November 7, 2016, a grievance hearing took place and following the discussion, the Department submitted a third request to TBS to reconsider the extension of time. That too was denied.
The Departmental representative indicates that they are very supportive of the grievor’s situation, have been very accommodating in offering the grievor flexible work arrangements and at no time had the intent to discriminate against the grievor and the grievor’s spouse. Had the grievor informed the Department earlier of the nature of the challenges the grievor was facing, the Department could have recommended that the extension request be sent to TBS sooner and focused more specifically on the exceptional circumstances of the grievor’s spouse’s health condition and the need to find medical professionals in the area prior to relocating to the new place of duty. While it is unclear as to when the grievor and the grievor’s spouse initiated attempting to find a medical professional near the new place of duty, what is clear is that in the months following the decision to deny the request for an extension, the grievor had made several attempts to secure the medical care the grievor’s spouse required. The Department followed TBS’ advice to deny the extension request as they are the decision making authority to approve or deny an extension request under subsection 2.13.1 of the Relocation Directive.
Executive Committee Decision
The Executive Committee reviewed the report of the Relocation Committee and noted that it could not come to an agreement on the intent of the Directive. The Executive Committee could not reach consensus either. As such, the Committee reached an impasse.