February 7, 2018
41.4.106
Background
The grievor occupies a position with Department X and was impacted by the closure of Location A in September 2013.
In April 2012, the grievor was notified of the impending closure and advised that the grievor was an affected employee. On July 5 2012, like many other employees, the grievor accepted a deployment to another institution in City Y (Location B) with an undetermined start date. At first, the Employer advised staff that relocation assistance would be offered to those who qualified, but shortly after, the Department revised its position and indicated that relocation benefits would not be granted as the Employer considered the employees’ place of duty to be the City Y area. This was the subject of NJC grievances 41.4.56 and 41.4.62 (which the grievor was a part of), and was subsequently upheld by the Executive Committee on December 18, 2013.
After the closure of Location A (September 30, 2013), the grievor began working at Location C temporarily as construction of Location B was not yet complete. As Location C was only 5 km away from Location A, the grievor stayed at the original residence for the time being. In February 2014, in anticipation of starting work at Location B, the grievor relocated closer to the new place of duty. In June 2014 RHQ requested additional information regarding the grievor’s move and in December 2014 TBS requested that a Business Case be submitted. It should be noted that the grievor did not start working at Location B until December 2014. On July 7, 2015 the TBS Program Authority denied the grievor’s case and the grievor filed a grievance on August 4, 2015.
Grievance
The grievor is grieving that the Employer’s decision to deny relocation benefits is against the purpose and intent of the Relocation Directive.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that shortly after the announcement to close Location A, two staff assemblies were called where employees are advised that those being deployed from Location A to a worksite located more than 40 km from their current residence will be entitled to employer-requested relocation assistance. Following this, on November 13, 2012, the Department revised its position and indicated that it was now considering the City Y census metropolitan area as a single place of duty and denied relocation assistance to all employees who were relocating from Location A to Location D, Location B, Location E or Location F. The grievor relocated 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). In or around the date of the NJC decision, the grievor decided to sell the house and moved closer to the new place of duty on February 28, 2014. In June 2014, the grievor received an ‘addendum’ to the original letter of offer informing the grievor of the process to initiate a relocation assistance claim. On December 1, 2014, the Department informed the grievor 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 Y 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, the Program Authority at TBS denied the grievor’s request as they were unable to identify an exceptional circumstance which warranted the grievor relocating before receiving written authorization to do so.
It is the position of the Bargaining Agent representative that the Employer’s decision to deny post-authorization of relocation assistance does not respect the intent of the Directive and the principle of Trust. There is nothing fair or reasonable in the fact that the grievor was initially informed that relocation assistance would be provided and then subsequently denied after choosing a new work location. On the other hand, it would be reasonable for departmental managers to allow post-relocation assistance in light of the fact that it was the Department’s erroneous interpretation of the Directive that introduced a two-year delay in the process.
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 Y 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.
This case presents exceptional circumstances where the Employer did not interpret the Directive correctly. Once the Employer received the NJC decision, it waited over 5 months before informing the grievor of the process it expected him to take to access relocation assistance. The grievor had to consider the needs of the family and moved closer to the new place of work. In keeping with the principles in the Directive, the Program Authority should be required to have some flexibility with respect to post-authorization since the delays were entirely of the Employer’s doing. It is disingenuous to deny the benefit on the basis that the grievor did not seek prior authorization when it is the Employer who refused to provide the appropriate authorization at the time of the 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 November 2012. In June 2013, the grievor received a letter advising that the effective date for deployment was September 30, 2013. Again, this letter made no reference to relocation and was signed and accepted by the grievor on October 18, 2013. Although discussions were had about relocation, no formal offer of relocation was made in writing at the time.
Location A closed on September 30, 2013, and Location B temporarily relocated to Location C (5.2 km away from Location A) until December 2014 when it was finally relocated to Location B. The grievor moved in February 2014 and at the time, did not have authorization to relocate. It is important to note that the grievor only relocated 36 km closer to the new place of duty.
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 in relation to the entitlement to relocation assistance. As of the date of this presentation, a file pertaining to the grievor’s relocation has not been opened with the CRSP.
In January 2015, a business case was submitted to the Program Authority in which the Department recommends 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 incurring expenses related to the sale of the home and the grievor’s move. In fact, written authorization was not provided by the Employer until June 2014, approximately four months 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 there would be no entitlement 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 denied the grievor’s request as it could not identify an exceptional circumstance which warranted the employee relocating before being authorized to do so.
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 been treated within the intent of the Directive. As such, the grievance is denied.