March 11, 2020
25.4.181
Background
The grievor works at Department X and is posted in City A, Country M. They arrived at post in August 2017. In November 2017, the grievor’s spouse joined them at post; following which, a request was made under FSD 50 for a Vacation Travel Allowance (VTA). The VTA was issued and the majority of it was used by the grievor and their spouse between November 2017 and February 2018.
At the end of February 2018, the grievor’s spouse returned to Canada on a temporary basis as a result of an offer of employment. In May 2018, the grievor informed the Department that their spouse would remain in Canada on a permanent basis. Given this, the Department elected to recover the VTA amount issued in November 2017 ($5,757) as the grievor’s spouse had not resided at post long enough to qualify as a dependant and receive the entitlement for VTA.
Grievance
The grievor is grieving the decision by Department X to adjust their vacation travel allowance provided in accordance with FSD 50.
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 Vacation Travel Allowance (VTA) amount was not issued in error as the grievor’s spouse satisfied the definitions of “Dependant” and “Accompanied by one dependant” found within FSD 2, as of the date when FSD 50 was issued. Furthermore, when the VTA was issued, the grievor’s spouse was “normally residing with the employee at a post” as per FSD 50.1.1.
The Bargaining Agent representative argued that FSD 50.8.1 was used in the past to refuse to increase a VTA under FSD 50 when there was a change in family size as a result of the arrival of dependants. As such, funds should not be recovered when there is a change in family size as a result of the departure of a dependant from post.
The Bargaining Agent representative indicated that the Department advised the grievor that the grievor was entitled to use their spouse’s portion of the VTA despite the spouse’s plan to return to Canada. Then, the Department indicated that they provided incorrect information to the grievor and that the VTA amount needed to be recovered. The Bargaining Agent representative argued that it is against the legal principle of estoppel to turn around and recover the funds after misinforming the grievor.
The Bargaining Agent representative concluded by stating that the grievor acted in good faith and relied upon the advice provided by the Department when the grievor incurred travel expenses. In light of the above, the Bargaining Agent representative is of the opinion that the full VTA amount recovered by the Department should be returned to the grievor.
Departmental Presentation
The Departmental representative is of the opinion that the grievor was treated within the intent of the Directive. The Departmental representative argued that the grievor’s spouse lost their dependant status for the purpose of FSD 50 when relocating permanently to Canada after residing at post for 4 months. It was further argued that FSD 50.8.1 refers to the adjustments of the allowance in relation to the size of family, not to adjustments for situations where someone loses their dependant status.
The Departmental representative recognized that the advice provided to the grievor from the Department failed to mention the requirements for eligibility under FSD 50. However, it was not the Department’s intention to ignore these requirements or to misinform or mislead the grievor in thinking that the VTA would not be recovered. Furthermore, it was noted that the grievor was made aware of all the requirements in order to be eligible for the VTA and acknowledged being aware of the Terms and Conditions which applied.
The Departmental representative indicated that the VTA was granted with the expectation that the grievor’s spouse would be residing at post for at least 8 months as per FSD 18.6. The Departmental representative also stated that the Department has the responsibility under the Financial Administration Act to recover all overpayments of salary, wages, pay and allowances.
The Departmental representative concluded by noting that, in making its decision to recover the VTA, the Department considered the NJC Executive Committee’s decision on the grievance #25.4.162.
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 50. It was noted that the VTA was issued based on the understanding that the grievor’s spouse would be residing with the grievor at post for a minimum of 8 months but that the spouse made the decision not to remain at post. As a result, the grievance is denied.