February 24, 2020
25.4.179
Background
The grievor, an employee at Department X, has been a rotational employee since 2008, but to date, has yet to be posted abroad and continues to work in City A. The grievor began receiving education assistance under FSD 33 beginning in the 2011-2012 school year. On April 28, 2017, the grievor received an e-mail which approved education assistance under FSD 33 for the 2017-2018 school year, but noted that the grievor’s eligibility for assistance under FSD 33 would be under review for the 2018-2019 school year given that the grievor had not accepted an assignment in nine (9) years. On March 19, 2018, the grievor was informed that they were no longer eligible to receive assistance under FSD 33 for the 2018-2019 school year given they had not accepted an assignment for that year.
Grievance
The grievor is grieving the refusal by Department X to approve an extension to the timelines stipulated within FSD 33.1 for the grievor’s children to continue to attend a Lycée in Canada via FSD 33.
Bargaining Agent Presentation
The Bargaining Agent representative is of the opinion that the grievor was not treated within the intent of the Directive. The Bargaining Agent representative indicated that the grievor satisfies the wording of both FSD 33.1.1 and FSD 33.1.2(c) in that the grievor is a career foreign service officer and that the grievor has not been offered an initial assignment outside of Canada.
The Bargaining Agent representative disputed the argument put forward by the Departmental Liaison Officer (DLO) in the second level reply by stating that FSD 33.1.4 does not limit the payment authorized for expenses incurred in accordance with 33.1.2 to a two-year period. The Bargaining Agent representative’s interpretation is that the intentional use of the word “normally” indicates an openness to flexibility beyond the initial two-year period.
The Bargaining Agent representative further argued that FSD 33.2.1, which allows for exceptions to be considered on an individual basis by the deputy head who may approve extensions of up to one year at a time as a result of operational requirements, does not state a cap with respect to granting exceptions after a certain number of years.
The Bargaining Agent representative noted that the Department indicated in its second level reply that the grievor has demonstrated “good faith in trying to get posted abroad since 2009”. The Bargaining Agent representative stated that given that the grievor has actively applied for postings and that it has been a departmental decision not to assign the grievor to posts that they applied for, this should be interpreted as an “operational requirement” for the grievor to remain in Canada.
The Bargaining Agent representative concluded by stating that the grievor should have been granted an additional one-year extension for the grievor’s children to continue their education at a Lycée in Canada as there is no maximum number of years for exceptions stipulated within FSD 33. In addition, the Department’s decision not to post the grievor abroad and keep them in City A yet maintain their rotational status, when combined with the Department’s acknowledgement that the grievor demonstrated good faith in trying to get posted abroad, should be interpreted as constituting an operational requirement under FSD 33.2.1. As such, it is recommended that the grievance be upheld.
Departmental Presentation
The Departmental representative is of the opinion that the grievor was treated within the intent of the Directive. The grievor has been a rotational employee since 2008 and was never assigned abroad. The Departmental representative argued that there was no operational requirement for not assigning the grievor abroad during that period of time.
The Departmental representative noted that in 2017 the Department established a seven (7) year cap, representing two assignments at Headquarters plus one additional year to cover for life events such as maternity leave, before stopping financial assistance under FSD 33. At the same time, it was decided by the Department to stop applying discretion to approve extensions beyond the seven (7) years, unless there were exceptional circumstances such as serious health conditions and/or operational requirements.
The Departmental representative argued that the reasons for which the grievor did not go abroad over the ten (10) year period in question, three (3) years beyond the cap implemented by the Department, did not qualify as exceptional circumstances. Being rotational is a condition of employment and the Employer cannot accommodate personal preferences when it comes to applying on postings abroad. It was noted that the grievor did not apply for postings over the course of four of the years in question, and in one other particular year only applied to one posting. During the remaining years, the grievor tended to apply to postings not at level and largely at low hardship level missions, the most competitive postings.
In conclusion the Departmental representative indicated that the Department has shown flexibility given the length of time the grievor has been receiving assistance under FSD 33. As the grievor was not assigned to a position at headquarters for operational reasons, the Employer is within its right to end financial assistance under FSD 33. As such, it is recommended the grievance be denied.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded the grievor had not been treated within the intent of FSD 33. It was noted that the Employer provided different information to the employee regarding their application for assignments abroad. As a result, the grievance is upheld.