June 19, 2019
25.4.175
Background
The grievor works for Department X and accepted a 36 month posting to City A, Country G. The grievor’s Posting Confirmation Form (PCF) was issued on February 27, 2017 with an arrival date of July 2017. On March 22, 2017, the grievor received an amended PCF with an arrival date of August 2017.
On May 16, 2017, the grievor’s posting was cancelled due to a medical condition impacting the grievor’s ability to travel to post. Following the cancellation, the grievor requested their Incidental Relocation Expense Allowance as per FSD 15.29, as the grievor had already incurred expenses in preparation for relocation. On October 13, 2017, after a review with management, the grievor was informed that in order for the Department to reimburse costs under FSD 15.29, the grievor must demonstrate that the expenses incurred were related to relocation and provide proof that expenses were incurred. On November 8, 2017, the grievor’s Bargaining Agent initiated an informal discussion with the Department, explaining that upon receipt of the PCF, the grievor incurred various expenses but did not keep receipts as receipts are not required for incidental relocation expenses. In response, the Department indicated that although the Incidental Relocation Expense Allowance is not accountable, in this case, it had not yet been issued to the grievor before the cancellation of the posting. Despite the timeline of events, the Department indicated that they would reimburse costs incurred, with the provision of receipts.
Grievance
The grievor is grieving the refusal by Department X to authorize the full Incidental Relocation Expense Allowance pursuant to FSD 15.29.
Bargaining Agent Presentation
It is the Bargaining Agent representative’s position that under FSD 15.29, the grievor is under no obligation to provide receipts for the expenses incurred prior to the posting being cancelled. It was submitted that in normal circumstances, the grievor would have not been required to provide receipts and thus should receive the full Incidental Relocation Expense Allowance.
The representative agrees with the DLO’s reply which references FSD 3, stipulating that the Employer is responsible for rectifying an injustice experienced by an employee as a result of a cancellation of posting. However, it is argued that receipts and other supporting documentation should not be required in order for the Department to rectify this injustice. FSD 3 does not state that the directives can be applied in a modified format that suits the Employer when an employees’ posting is cancelled. Furthermore, even if FSD 3 was interpreted as the second level reply suggests, the representative submits that the legal principle of lex specialis should be applied, such that the very specific wording of FSD 15.29.1 should override the general wording contained in FSD 3.
Contrary to management’s review, the date of March 22, 2017, indicated on the posting cancellation form was an error and the grievor actually received notice of cancellation on May 16, 2017. The amount of time between issuance of the original PCF and the notification that her posting was cancelled was three (3) months rather than three (3) weeks. In light of this error and given the wording of FSD 15.29.1, the representative submits that the grievor should be issued the full Incidental Relocation Expense Allowance without any requirement to provide receipts.
Departmental Presentation
The Departmental representative does not deny that FSD 15.29 stipulates that receipts are not required; however, the authority to allow the Incidental Relocation Expense Allowance after a posting is cancelled lies under FSD 3.7. The intent of FSD 3.7 is to rectify what would otherwise be an obvious injustice to the employee as a result of the cancellation and to do this, the Department submits, requires supporting documentation. There is nothing in FSD 3.7 that precludes the Employer from requesting documentation in order to determine if an employee has suffered an injustice or to make sure that expenses are justified before providing reimbursement.
The grievor previously outlined expenses incurred in preparation for the posting (i.e. City A guide books, language courses for their kids, cancelling memberships…etc.) and the Department showed flexibility and willingness to rectify these injustices, provided that reimbursement could be justified through documentation such as receipts or financial statements. The Departmental representative indicated to the Committee that a statutory declaration could have been considered, but this was not offered to the grievor.
Furthermore, while the intent of FSD 15.29 – Incidental Relocation Expense Allowance is to cover expenses which are directly and wholly attributable to the relocation, it was highlighted that the grievor never relocated. Again, the Department is ready and continues to offer to rectify any injustices or expenses incurred as result of the grievor’s preparation for posting; however, the Department requires documentation before it can issue payment of the actual expenses which were directly and wholly attributable to the relocation.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded the grievor had been treated within the intent of FSD 15.29 such that the grievor is not entitled to receive the full amount of the IREA given that a relocation did not occur. As a result, the grievance is denied.
The Executive Committee noted the Department correctly identified that it can authorize the application of FSD 15 – Relocation, including an allowance for IREA, to provide such additional assistance as is considered necessary to rectify what would otherwise be an obvious injustice to the employee as a result of the cancellation of the assignment. As such, the employee must provide the Deputy Head with sufficient information, such as receipts, a declaration or other, for the Deputy Head to establish the amount of the allowance which would rectify any obvious injustice to the employee.