February 7, 2018
41.4.119
Background
The grievor works at Department X. On June 6, 2014, after graduating from college in City A, Province Y, the grievor was immediately offered a position in City B, Province Z, with full relocation benefits. The file was referred to Brookfield on June 9, 2014 and the grievor flew out to City B the very next day.
Upon arrival in City B, the grievor found it difficult to find suitable affordable housing in the dynamic market of Region D. The grievor’s difficulties were compounded by the fact that the job requires the grievor to be away one-month on, one-month off. Over the course of the next several months, the grievor broadened the search to Region E. During this time and up until finding a house, the grievor stayed with a friend in City C, Province Z. The grievor had a PMV shipped there and during the course of the search the grievor had requested Interim Accommodation Meals and Miscellaneous Allowance (IAM&MA) on September 6, 2014.
Initially, the Employer denied the request for IAM&MA given that the grievor’s vehicle, which was declared as the total of the grievor’s Household Goods and Effects (HG&E) was delivered to the grievor on July 26, 2014. However, on March 20, 2015, after several email exchanges, the Department National Coordinator (DNC) ultimately approved the grievor for 60 days of IAM&MA retroactive to the date of the grievor’s arrival (June 6, 2014) based on the short notice relocation clause.
On May 22, 2015, the grievor purchased a property in City C, Province Z, which just happened to be tenanted. In accordance with Province Z regulations, the tenant was entitled to two months’ notice before having to move out, which resulted in the grievor’s closing date being pushed back to July 2015. As the relocation file was opened on June 9, 2014 the grievor had until June 9, 2015 to fully relocate. Given the tenant situation and the expected closing date, the grievor submitted a request for an extension of time to the Program Authority at TBS.
On July 9, 2015, TBS denied the grievor’s request for an extension of time on the grounds that issues of tenancy do not meet the threshold of exceptional circumstances. Furthermore, the Program Authority advised the DNC that he had erred in approving the IAM&MA after the fact and because IAM&MA is intended to be used when an employee is separated from their HG&E, which was not the case. The grievor had previously advised that the grievor’s only HG&E was the vehicle and that was shipped a month after arriving at destination. As such, the grievor’s request for an extension of time was denied and the Department is seeking to recover the overpayment of the IAM&MA from the grievor.
Grievance
The grievor is grieving TBS’ decision to deny the grievor’s eligibility to IAM&MA (contrary to the Department’s previous authorization) as well as its decision to refuse the request for an extension to the one year relocation period.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor did everything right to relocate. The grievor accepted the position, contacted the office prior to relocating, consulted Brookfield and the CRSP, sent all documentation in on time and requested an extension on purchasing a residence; only to find out one year later that the Employer is clawing back most of what has already been approved and that the grievor would receive virtually no entitlement to moving expenses. The Bargaining Agent representative characterized this grievance as having three aspects:
- The purchase of a residence in City C instead of City B, the grievor’s new place of duty: The representative indicated that part of the reason for denying the grievor relocation benefits was due to the fact that the grievor did not purchase a residence at the new place of duty. However, in speaking to the Relocation Advisor, the grievor was up front about searching for a residence outside of City B and at no point did the Advisor indicate that further steps would be required to alter the grievor’s pre-approved move from City A, Province Y to City B, Province Z. The representative submits that the definition of relocation does not state how close an employee must move to their new place of duty and that a primary consideration should be whether or not the employee had moved 40 km closer to the new place of duty. In this case, the grievor moved over 6000 km closer to the new place of duty.
- The request to extend the one year time limit to relocate: The representative indicated that the grievor’s job required travel every other month. Therefore, unlike most public servants, the grievor only had six months out of the twelve to finalize all relocation arrangements. The grievor’s ability to find a suitable residence was further affected by the expensive and competitive housing market in Province Z. The grievor eventually found a suitable residence in City C, however, tenancy laws delayed the closing date beyond the allotted one year period. Given these circumstances, it was argued that these conditions constitute exceptional circumstances and the TBS Program Authority was unreasonable in denying the grievor’s request for a three month extension to the time limit. The Bargaining Agent adds that if a depressed housing market constitutes an exceptional circumstance, so too should an expensive and aggressive housing market.
- IAM&MA benefits: The representative indicated that under the short notice relocation clause, the DNC approved the grievor for 60 days of IAM&MA. However, following the results of the grievor’s extension of time request to TBS, the Employer is now seeking to claw back benefits that have already been paid. Most office workers would have a continuous period of 60 days to secure a residence; however, the grievor only had 28 days before traveling and was unable to secure a residence in that time. The Employer’s reliance on the date the grievor received the HG&E was due to a misunderstanding. While it is true that the grievor’s vehicle and personal items packed on the flight were at destination, the HG&E were still in City A, Province Y while the grievor looked for permanent accommodations. As the grievor could not find permanent accommodations, the grievor remained separated from the HG&E for the full 60 days and therefore should be entitled to IAM&MA for that period.
The Bargaining Agent Representative submits that the NJC Relocation Directive is written for the 90 plus percent of employees who commute to their place of duty on a daily basis and generally have access to a computer; the grievor does not fit into that scenario. Therefore, it is important to look beyond the definitive words of the Directive and apply the principles of trust and flexibility while respecting the intent of the Directive which states that “…the aim shall be to relocate an employee…while having a minimum detrimental effect on the employee…”. Given the grievor’s job requirements, the difficult housing market and the tenancy laws of the province, the grievor should be entitled to the full 60 days of IAM&MA as well as having the request for an extension of time approved.
Departmental Presentation
The Departmental representative’s position is that this grievance only has two aspects, as the relocation to City C instead of City B was not a factor in their decision. The denial of expenses related to the purchase of the grievor’s new residence in City C was due to the time limits, not the location. As such, the only issues to consider are the extension of time request and the denial of IAM&MA.
- The request to extend the one year time limit to relocate: The TBS Program Authority did not approve the request for an extension of time indicating that the grievor had made no attempts to conduct a door-to-door move and that nothing in the business case exhibits exceptional circumstances. While the housing market is dynamic, the grievor did not demonstrate considerable efforts to deal with these challenges and did not prove that the grievor was actively looking for properties, as the grievor took a house hunting trip 5 months after arriving. Furthermore, a two month closing date is normal and should not be considered an exceptional circumstance. The grievor was told on numerous occasions that the closing date had to take place prior to June 9, 2015 and should have accounted for this. Although the grievor’s work schedule requires travel 28 days at a time, over the course of the one year relocation period, the grievor had taken 2.5 tours off, amounting to 208 days off work in which the grievor could have looked for a new residence.
- IAM&MA benefits: As the grievor’s HG&E were moved and residence at origin vacated, for all intents and purposes the grievor has relocated, with the possible exception of purchase benefits related to buying a house. Although the Department recognizes that this was a short notice relocation, this did not impact the grievor’s ability to relocate while travelling with the majority of HG&E and confirms receiving the HG&E on July 26, 2014. At most, the grievor should have been granted 15 days of IAM&MA, not 60 days. Furthermore, subsection 5.3.1 indicates that IAM&MA is not automatic and requires prior approval, which the grievor did not obtain. Therefore, any costs the grievor incurred were not approved in advance and there is no authority in the Relocation Directive to post-authorize these types of allowances. The Department’s decision to post authorize 60 days of IAM&MA was done in error and paragraph 2.2.2.11 of the Relocation Directive states that:
2.2.2.11 At the end of the relocation process, if an employee has received funds that should not have been provided, the employee must make full restitution immediately upon notification, to the CRSP.
As such, the Department has the authority to recover the funds that were provided in error.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the issues are twofold. With respect to the extension of time request, the Committee concluded that the grievor was treated within the intent of the NJC Relocation Directive, as the grievor had sufficient opportunities to secure a new residence within the one year timeframe. With respect to IAM&MA, the Committee concluded that, excluding the days the grievor was travelling, the grievor is entitled to IAM&MA up to July 26, 2014; the date upon which the grievor was no longer separated from the grievor’s HG&E. As such, the grievance is upheld to the extent noted above.