May 12, 2020
25.4.183
Background
The grievor is employed at Department X and was posted to City A, Country M from August 2017 to August 2019. While at post, the grievor’s spouse remained in Canada to arrange for the disposal of their principal residence and to await a medical procedure. Given that the grievor was responsible for maintaining a residence in Canada while at post, they requested a waiver of shelter cost under FSD 18.4. Although the grievor initially requested a waiver for the entire posting (24 months), following discussions with the Department, the request was reduced to 12 months.
On July 19, 2018, the grievor informed the Department that they had been unable to dispose of the principal residence within the 12 month timeframe and requested information on extending the waiver of shelter cost. After exchanges on the issue, the Department indicated that a waiver of shelter cost is limited to 12 months. The grievor then requested that managerial discretion be used under FSD 18.9. The Department denied this request.
Grievance
The employee is grieving the Employer’s refusal to approve an extension of their shelter waiver period.
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 FSD 18.2.4(f). It was submitted that, as per FSD 18.2.4(f), the length of a waiver of shelter cost “would not normally exceed twelve months”. The Bargaining Agent representative argued that the intent of this type of wording is to establish the maximum duration for a waiver of shelter cost under normal circumstances while at the same time allowing discretion from the deputy head.
The Bargaining Agent representative further argued that FSD 18.9 supports the fact that the 12-month period stipulated within FSD 18.2.4(f) should not be interpreted as a firm maximum. It was stated that this provision is subject to review and consideration by management. Moreover, the Bargaining Agent representative submitted that given that the conditions which led to the approval of the grievor’s waiver of shelter cost remained in place, the ability of the Department to apply managerial discretion is not impeded by the wording of FSD 18.9.1(a) or (b).
The Bargaining Agent representative also noted that the Department instructed the grievor to change their application form for the waiver of shelter cost given that the Department could not approve a waiver of more than 12 months at the beginning of the posting, but that they could apply for a renewal in the event that the residence was not sold during this 12-month period.
The Bargaining Agent representative concluded by noting that the waiver of shelter cost appears to have been initially approved for 24 months in the FSD Portal, even though the grievor was originally informed that it was approved for 12 months. 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 Departmental representative stated that FSD 18.9.1 indicates that managerial discretion should only be exercised in special circumstances. It was argued that the grievor did not demonstrate special circumstances which would justify an extension of their entitlements under FSD 18.4.
The Departmental representative submitted that active efforts to dispose of a home would include showings, open houses, changing realtors, lowering the list price and attempting to rent the home as well as selling as per FSD 18.2.7. It was submitted that the listing price of the residence was not reduced during the 12-month period. As such, the Departmental representative argued that the grievor did not demonstrate that active and realistic attempts were made to dispose of the principal residence.
The Departmental representative noted that although there was mention of a medical condition at the time of the initial request, the issue was resolved within the first 12 months and therefore the provisions of FSD 18.2.4(e) were not applicable.
The Departmental representative also stated that by denying the extension for the waiver of shelter cost, the grievor was not entitled to Family Reunion Travel under FSD 18.5.
With regards to the fact that the FSD Portal indicated that the waiver of shelter cost was approved for 24 months, the Departmental representative submitted that the Department took into consideration its obligation under promissory estoppel and referred to Prosper v. Treasury Board (Canada Border Services Agency) [2011 PSLRB 140]. The Departmental representative argued that, in the current grievance, the error in the FSD Portal was corrected and that the grievor was notified of this amendment prior to making travel arrangements. It was further argued that the grievor was aware that an extension of the waiver of shelter cost may not be approved when they decided to travel. As such, it is recommended that 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 been partly treated within the intent of the FSD. With respect to the waiver of shelter cost under FSD 18, the Executive Committee considered that an extension over the 12-month period would place the grievor in a more favourable situation than an employee who did not have separated dependants residing in Canada as indicated in FSD 18.9.1(b). Consequently, the grievor was treated within the intent of the Directive where the waiver of shelter cost is concerned.
Regarding family reunion, considering that provisions under FSD 51.9 allow family reunion for unaccompanied employees, the Executive Committee determined that the Department should examine whether FSD 51.9 is applicable to the grievor’s situation. As a result, the grievance is upheld in part to the extent indicated.