February 7, 2018
41.4.99
Background
The grievor works at Department X and was impacted by the closure of Location A in September 2013. On November 9, 2012, in preparation for the closure of Location A, the grievor accepted a deployment to Location B with an undetermined start date. On June 28, 2013 it was confirmed the grievor would commence work at Location B effective September 30, 2013. Given the upcoming deployment, the grievor relocated in June 2013 to a principal residence closer to the new place of duty. At the time of the relocation, it was the Employer’s position that the grievor was not entitled to any relocation benefits as it considered the employee’s place of duty, to be the City A area. Following the NJC Executive Committee decisions 41.4.56 and 41.4.62 dated December 18, 2013, which concluded that the City A area could not be used as the place of duty in regards to the Relocation Directive, an amended letter of offer dated June 10, 2014 was issued to all grievors in question, including this grievor.
Based on the language in the revised letter of offer, which indicated that the grievor may be entitled to relocation assistance, the grievor contacted the Contracted Relocation Service Provider (CRSP) in June 2014. The CRSP began retroactively reimbursing the grievor for relocation costs incurred in 2013 as a result of the NJC Executive Committee’s decision. As the employee was requesting reimbursement for expenses incurred more than thirty (30) days prior to the date of registration with the CRSP, in accordance with subsection 2.1.1 of the Directive, the CRSP was informed to place the file in abeyance until such time that the TBS Program Authority made a decision on the business case for post authorization. On July 7, 2015, the Program Authority at TBS denied the grievor’s business case stating that the “Program Authority was unable to identify an exceptional circumstance which warranted the employee relocating before being authorized to do so”. Given this, the Department notified the grievor that it would need to recover all reimbursements made to the grievor under the auspices of the Relocation Directive. As such, the grievor is grieving the Employer’s decision to retroactively deny relocation benefits and the recovery of these benefits. To date, the Department has delayed recovery until such time that a decision has been made with respect to this grievance.
Grievance
The grievor is grieving the Employer’s decision to retroactively deny relocation benefits and to recover monies already paid under the Directive.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that shortly after the announcement to close Location A, a staff assembly was called where employees were advised that those being deployed from Location A to a worksite located more than 40 km from their current residence would be entitled to employer-requested relocation assistance. Shortly thereafter, the Department developed a relocation eligibility list of all employees with a notation beside each employee indicating “yes, relo” or “no relo”. The grievor’s note said “yes, relo” and this information was shared with the grievor. Following this exercise, on November 13, 2012, the Department revised its position and indicated that it was now considering the City A area as a single place of duty and denied relocation assistance to all employees who were relocating from Location A to Location B, C, D or E. The grievor was relocating from Location A to Location B. The grievor grieved this decision and was informed that the NJC had upheld the grievance on January 22, 2014 (41.4.56 & 62). Between the time of filing the grievance and the NJC decision, the grievor sold the house and relocated closer to the new place of duty. Upon receipt of the NJC decision, the grievor was advised by the Department that “Department X has agreed to provide you with relocation assistance”. The grievor inquired as to whether the grievor would “still get relocation even though [the grievor] had already moved?” and the Department responded that “worse-case scenario, [the grievor] would have to complete a business case to explain why the grievor was applying for benefits after the move”. The Department referred the grievor’s relocation file to Brookfield Global Relocation Services, a file was opened and the grievor received reimbursement for most of the relocation expenses of approximately $25,000. After receiving reimbursement, the grievor was informed that the file had been placed on hold pending Treasury Board approval for post-authorization. In order to obtain approval, the Department prepared a single business case to support all grievors affected by the City A area decision and supplemented each case with information specific to each individual. The Department submitted the grievor’s business case with a recommendation to approve reimbursement of all relocation expenses. However, on July 7, 2015, three years after selecting a new workplace and two years after providing the grievor with a relocation date, the Program Authority at TBS denied the grievor’s request as they were unable to identify an exceptional circumstance which warranted the employee relocating before receiving written authorization to do so.
It is the position of the Bargaining Agent representative that the Employer’s authorization was twice communicated in writing: Once when the grievor was given the relocation eligibility list and again after the NJC decision, when the Department emailed to advise that “Department X has agreed to provide you with relocation assistance”. The Employer’s subsequent reversal fails to uphold the Directive’s principles of:
Trust – The grievor was repeatedly informed that relocation assistance would be provided only to have it denied after making decisions/arrangements with respect to the new place of duty.
Flexibility – The denial fails to address the needs and interest of the grievor, namely the importance of settling the grievor’s family/children into their new residence prior to the beginning of the school year and the requirement to report to the new workplace in September.
Respect – The Employer’s repeated flip-flop on providing relocation assistance was insensitive and did not represent a supportive environment for the grievor’s needs.
Valuing People – The Employer’s treatment failed to recognize the grievor in a professional manner and did not support the grievor and the grievor’s family in the relocation context.
Furthermore, it was not the employee who failed to obtain prior authorization, but in fact the Employer who failed to provide the pre-authorization appropriately. The employee would have received proper authorization at the outset had it not been for the misinterpretation and use of the City A area. A general labour relations principle regarding grievance rulings is that the third party should seek to restore the grievor to the position he or she would have been were it not for the Employer’s misinterpretation. Therefore, the grievor should have received relocation assistance as a result of the NJC decision.
The responsibility to authorize relocation and to ensure that all relocation arrangements are consistent with the Directive lies with the Employer according to subsections 2.1.1 and 2.2.1.5. Once the Employer’s representative authorized the relocation in writing, which it did, it is bound by that authorization. It is disingenuous for the TBS Program Authority to subsequently deny the benefit on the basis that the grievor did not seek pre-authorization when it is the Employer who refused to provide proper authorization at the time of relocation.
Departmental Presentation
The Departmental representative’s position is that the grievor relocated prior to receiving written authorization to do so. The grievor’s initial letter of offer for deployment had an undetermined start date, made no reference to relocation and was signed and accepted by the grievor in January 2013. In June 2013, the grievor relocated. Later that month, the grievor received a letter advising that the grievor’s effective date for deployment is September 30, 2013. Again, this letter made no reference to relocation and was signed and accepted by the grievor on July 2, 2013. Following this, in June 2014, the grievor received an ‘addendum’ to the original letter of offer advising that the grievor may be entitled to relocation assistance. The grievor then contacted Regional Finance, a file was opened with the Contracted Relocation Service Provider and in July 2014, the CRSP proceeded to reimburse the grievor for approximately $23,402. This reimbursement however, was done in error. In January 2015, a business case was submitted to the Program Authority in which the Department recommended post-authorization of relocation expenses. On July 7, 2015, the TBS Program Authority denied the request for post-authorization and indicated that it was “unable to identify an exceptional circumstance which warranted the employee relocating before being authorized to do so”.
It is the position of the Departmental representative that subsection 2.1.1 explicitly states that authorization “shall be in advance in writing”. The grievor did not have written authorization to relocate when expenses were incurred related to the sale of the grievor’s home and move. In fact, written authorization was not provided by the Employer until June 2014, approximately one year after the grievor had moved.
Subsection 2.2.2.2 requires employees to “obtain written authorization…prior to incurring any relocation expenses” and subsection 2.2.2.1 requires employees to read the Directive and “consult with CRSP prior to engaging in any relocation-related activities”. The grievor did not fulfill either of these obligations. Employees are required to read the Directive and seek clarification when necessary. By proceeding with relocation activities without written authorization, it may be argued that the grievor acted with full knowledge that he would not be entitled to relocation benefits and is now required to accept the financial consequences.
Regarding the issue of post-authorization under subsection 2.1.1, the TBS Program Authority has the delegated authority in this matter and they denied the grievor’s request as they could not identify an exceptional circumstance which warranted the employee relocating before being authorized to do so. The grievor was reimbursed $23,402 in error and the Directive requires that an employee, who is in receipt of funds that should not have been provided, make full restitution immediately upon notification to the CRSP. NJC case law (41.4.22 and 41.4.105) confirms that justifiable and reasonable expenses should only be considered once relocation has been authorized and that authorization should be in advance.
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 determined the employee had not been treated within the intent of the Directive. As such, the grievance is upheld.