November 18, 2020
25.4.184
Background
The grievor is employed at Department X and returned from post (City A) in 2011. At that time, the grievor enrolled their two children in a French Lycée in City B and applied for education assistance under Foreign Service Directive (FSD) 33 which was granted. In 2013, the grievor was diagnosed with cancer and their physician indicated that the grievor should remain in Canada until at least 2018 to reach a period of five years cancer-free. The Department authorized education assistance under FSD 33 each year until the 2018-2019 school year, inclusively.
In September 2018, the grievor began to apply for postings abroad. On December 11, 2018, the grievor was advised by the Department that, given that the grievor was going through separation proceedings, they should resolve their marital separation situation before accepting a new posting. On December 21, 2018, it was confirmed that the grievor was not selected for the postings for which they had applied and ceased applying for postings from this point.
On March 8, 2019, the grievor requested education assistance for one child under FSD 33 for the 2019-2020 school year. On May 14, 2019, the Department asked that the grievor submit a case to the Working Group B. The grievor submitted their case and was informed on June 6, 2019, that the request for education assistance under FSD 33 had been denied. The grievor filed a grievance on June 24, 2019.
Grievance
The employee is grieving the refusal by Department X to approve an extension to the timelines stipulated within FSD 33 for their child to continue to attend the Lycée in Canada via FSD 33.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that as the grievor requested Education Assistance under FSD 33 on March 8, 2019, prior to the coming into force of the current version of the Directive (April 1, 2019), the previous version ought to apply. The Bargaining agent representative indicated that the 2013 version provides for a baseline period of two years with additional one-year extensions being permitted. There is no limit to the number of possible extensions under the 2013 version of the Directive. Had the Department responded to the grievor’s request in a timely manner there would be no question as to which version is applicable.
The Bargaining Agent representative indicated that the Department did not respond to the grievor’s request until May 14, 2019, at which point it noted that FSD 33.2.1 under the 2019 version of the Directive stipulates that assistance would not normally exceed six years. As a result, the grievor was directed to submit a business case for a further extension which was ultimately denied.
The Bargaining Agent representative submits that in the event it is determined that the 2019 version should apply, the Department should not include the period from 2013 to 2018 in its calculation of the 6-year limit. The grievor was unable to be posted during that timeframe as a result of their medical condition. To include this period would constitute discrimination based on disability and would therefore be a violation of the Canadian Human Rights Act (CHRA).
Likewise, a failure to consider the grievor’s medical condition in the context of the extension request under the 2013 Directive would likewise constitute a contravention of the CHRA.
The Bargaining Agent representative further noted that the Department advised the grievor against pursuing postings until their marital separation was resolved as the grievor would not be permitted to take an assignment abroad while proceedings were ongoing. It was suggested that to subsequently deny the grievor’s extension request would constitute discrimination based on family status, also a prohibited ground under the CHRA.
The Bargaining Agent representative therefore submitted that the grievance should be allowed and the grievor should either be granted a one-year extension under the 2013 version of the Directive or that the years the grievor was ill should be omitted from the calculation of the 6-year limit under the 2019 version.
Departmental Presentation
The Departmental representative explained that the grievor received Education Assistance in accordance with FSD 33 from 2011 to 2017. Prior to 2017, the Department had a practice of authorizing FSD 33 beyond the two-year limit. In 2017, it instituted a 7-year cap with extensions being granted in exceptional circumstances such as health reasons or circumstances beyond the employee’s control. Consequently, the grievor was granted an extension for 2018 due to health reasons.
The Departmental representative indicated that the grievor’s 2019 request for extension was assessed under the 2019 version of the Directive as it pertained to the 2019-2020 school year which was scheduled to begin in September 2019.
It was explained that the grievor’s request for an extension in 2019 was denied by Working Group B as the reason for the request was the grievor’s separation proceedings. The Departmental representative acknowledged that a separation can pose challenges to pursue a career in the Foreign Service; however, these do not constitute exceptional circumstances beyond the employee’s control. It was noted that employees undergoing such legal proceedings may choose to go abroad provided they satisfy the Department that risks associated with child custody arrangements and personal possessions are resolved.
The Departmental representative indicated that the decision does not constitute discrimination on the basis of disability or family status.
The Departmental representative submitted that as there was neither an operational requirement for the grievor to remain in Canada nor exceptional circumstances beyond the grievor’s control, there was no discretion under FSD 33.2.2 to grant the grievor an additional one-year extension. It was therefore submitted that the grievor was treated within the intent of FSD 33.
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. As such, the grievance was denied.