September 30, 2020
25.4.182
Background
The grievor works for Department X and was posted to City A, Country F in July 2018. The grievor and their spouse have three (3) dependent children. Only the grievor’s youngest child accompanied the grievor and spouse to post in July 2018 as the other two children would be returning to/starting university in Canada in September 2018.
In May 2018, the grievor met with an FSD Advisor to discuss entitlements under the FSDs, particularly with respect to one of their children commencing university outside the headquarters city, but within Canada (City B). The grievor sought clarification around shipment of the dependant’s goods and effects from headquarters to the post-secondary institution, as well as escort travel for the grievor to return from post to Canada at the end of August 2018 to move this dependant to the post-secondary institution.
The grievor left the meeting with the understanding that the above-noted expenses would indeed be reimbursed. This understanding was confirmed in an email from the FSD Advisor on July 11, 2018.
On July 28, 2018, the grievor, their spouse and their youngest dependent child went to post. On August 24, 2018, the grievor traveled from City A to City C in order to facilitate their dependant’s move to university. The grievor then returned to post from the post-secondary institution on September 4, 2018. On September 20, 2018, the Department indicated that FSD 35 - Education Travel does not in fact apply to the present situation and hence, the grievor would not be eligible for reimbursement for the shipment of goods and effects nor the escort travel.
Following the denial by the Department to reimburse these expenses, the grievor’s spouse was in discussions with the FSD Client Centre until February 2019 regarding this matter. On February 11, 2019, the FSD Client Centre confirmed the denial of reimbursement for the shipment of the dependant’s personal effects from headquarters to the post-secondary institution, as well as the grievor’s travel expenses from post to headquarters to escort their dependant to university.
Grievance
The grievor is grieving the refusal by the Employer to authorize reimbursement via the FSD expenses they incurred moving their dependant from City C to City B and travelling to help facilitate the move.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that the grievor had to incur additional expenses due to their posting abroad. It was submitted that, if the grievor had been living in City C, the grievor’s private motor vehicle (PMV) would not have been in long-term storage. Therefore, the grievor would not have had to incur additional expenses to rent a van in order to move their dependant. The Bargaining Agent representative noted that, with respect to the shipment of goods and effects, the grievor is only seeking reimbursement for the cost of the rental vehicle, given that the cost of gas would have been the same if the grievor was living in City C and would have used their PMV. It was argued that, by being reimbursed for the cost of the rental vehicle, the grievor would be neither advantaged nor disadvantage by serving abroad.
The Bargaining Agent representative further stated that the grievor had other options for moving their dependant to university. However, the grievor chose to return to Canada to facilitate the move based on erroneous advice from the Employer. The Bargaining Agent representative argued that, according to the legal principle of estoppel, the grievor should not be made financially responsible for the cost incurred in relying on advice provided by the Employer as a result of the fact that the Employer has subsequently retracted its initial advice and provided a contradictory interpretation. While making this argument, the Bargaining Agent representative referred to the decision Webb and Treasury Board (Foreign Affairs and International Trade) [166-2-28379].
The Bargaining Agent representative further argued that the Department has the authority to reimburse expenses incurred by the grievor through the NJC Foreign Service Directives. It was mentioned that the refusal from the Department to take financial responsibility for providing erroneous information has placed the grievor in a less favourable situation than if they would have been serving in Canada which is contrary to the principle of comparability of the NJC Foreign Service Directives. The Bargaining Agent further submitted that the General section of the Foreign Service Directives indicates clearly that the principle of comparability is not limited to situations which are specifically dealt with in the Directives.
Finally, the Bargaining Agent representative indicated that the Department did not bring subsection 15.13.9 of the FSD to the attention of the grievor as an option to be considered for potentially covering the expenses incurred for moving the grievor’s dependant. It was further submitted that, while the grievor’s dependant chose to obtain their post-secondary education at an institution in City B, the dependant would have seriously considered obtaining their post-secondary education in City C had the grievor remained in City C. Based on the above, and more specifically on the principle of estoppel, the Bargaining Agent representative recommended that the grievance be upheld.
Departmental Presentation
The Departmental representative began by indicating that the grievor’s dependant was living in City C prior to moving to City B for university, while the grievor was living at post. It was further noted that shelter assistance was being paid for the grievor’s dependant pursuant to FSD 34.6.
The Departmental representative submitted that the FSD Advisor indicated that moving expenses for the grievor’s dependant’s goods and effects could possibly be reimbursed without making promises and that they would have to look into it. The Departmental representative acknowledged that there may have been a misunderstanding regarding the moving expenses and that the advice provided to the grievor regarding the entitlement for escort travel was not in line with FSD 35. However, the Departmental representative is of the view that the grievor would have incurred the cost of moving their dependant’s goods and effects from City C to City B had the grievor been living in City C rather than serving abroad and that these expenses fall under the responsibility of the grievor. The Departmental representative further argued that the Department has no authority under the NJC Foreign Service Directives to reimburse the cost of the rental vehicle used to move the goods and effects of the grievor’s dependant.
Finally, regarding the grievor’s travel expenses from post to headquarters in order to escort their dependant to university, the Departmental representative indicated that there are no provisions under FSD 35 which allows the reimbursement of escort travel expenses for a post-secondary student who is in Canada. It was submitted that paragraph 35.4.1(b) does not apply to the grievor’s situation. Given the above, the Departmental representative recommended that the grievance be denied.
Executive Committee Decision
The Executive Committee considered the report of the FSD Committee which concluded that the grievor had been treated within the intent of the FSD. It was noted that there are no provisions under the FSD which allow for the shipment of a dependant’s effects from the employee’s headquarters city to the location of the post-secondary institution and there are no provisions for a parent to travel to Canada unless the dependant is at post and is accompanied by the parent to Canada. As such, the grievance was denied.
Notwithstanding, the grievor was provided with erroneous information which led them to believe they were entitled to such provisions and the grievor made decisions based on this information. As such, it is strongly recommended that the Department address the situation outside of the scope of the FSD.