June 23, 2021
25.4.186
Background
The employee arrived at post, in City A, in July 2018 (on a four-year assignment) with a dependent child (8 years old), who is diagnosed with two conditions.
Prior to relocation, the employee was approved for Special Services at Home (SSAH) funding by the Province G Ministry of Children, Community and Social Services (MCCSS) in the amount of $4,830 to support the child, from April 1, 2018 to March 31, 2019. In May 2018, the employee received a letter from the MCCSS of Province G, stating that effective August 1, 2018, they will no longer be eligible for funding under SSAH because they have notified the Ministry that they will be moving out of Province G.
In August 2018, the employee prepared a letter addressed to Working Group B, to request funding under the SSAH program, that contained requested information and compared the services they used in City B vs. the cost of comparable services they would likely use in City A. City A does not have a program similar to the SSAH program that is available for residents of Province G. The employee’s request was granted.
On May 24, 2019, the employee submitted a request for funding to replace the SSAH for 2019-2020. In support of this request they provided documentation from the MCCSS of Province G confirming their entitlement to SSAH for 2019-2020 had they resided in Province G. In November 2019, WGB referred the case to the Working Group A to provide clarification on the intent of FSD 34.9 (effective April 1, 2019) with regards to services provided outside of school. The grievor filed a grievance on November 12, 2019.
In February 2020, WGA clarified that “…only those programs which support the child in obtaining elementary or secondary education can be considered. The intent of FSD 34…is not to provide an allowance in support of services provided at home”. As such, WGB denied the employee’s request for assistance in the amount of $4,830 under FSD 34.9.1 and stated that a separate request for Integrated Delivery of Rehabilitation Services of the SSAH program (i.e. occupational therapy, physiotherapy and speech-language pathology) may be considered as WGA determined that these met with the intent of FSD 34.9.
Grievance
The grievor is grieving that SSAH are not being reimbursed for their child, which is in violation of the NJC Foreign Service Directive 34, the Foreign Service Directives principles, and the RE Collective Agreement (signed on August 30, 2019).
Bargaining Agent Presentation
The Bargaining Agent representative began their presentation by stating that this grievance and the corrective measures were denied at second level as the Department stated they do not have authority to grant funding for SSAH. The Bargaining Agent representative clarified that the Department argued that SSAH funding does not fit within the intent of FSD 34.9 and therefore the grievor’s request was not granted.
The Bargaining Agent representative argued that the Department’s current decision to deny reimbursement for expenses related to SSAH is not in line with their original approval of reimbursement from 2018. The representative argued that the Department should exercise flexibility and fairness, but they have not done so thus far, and as a result, they have not treated their employee fairly and did not follow the collective agreement. The Bargaining Agent representative stressed the importance of the principle of comparability, as well as the fact that NJC directives focus on the intent rather than wording and as such, consideration should be given to situations which may arise but are not specifically covered in the directives. The representative also stressed the importance of the introduction and definitions of FSD 34.9.
In conclusion, the Bargaining Agent representative noted that their main concern is the grievor’s dependent not being able to easily re-enter the Canadian school system. It was further noted that the grievor’s dependent has proven special needs and that the program being requested is believed to be required for the child’s successful reintegration into a school setting in Canada. Additionally, the representative noted that there is no indication in the changes to the FSD language that there was intent by the NJC to amend the meaning of FSD 34.9 and therefore, it does not follow that the request should be denied or delayed.
The Bargaining Agent mentioned that there is an administrative burden to justify requiring this funding every year, and that not knowing if approval will be granted makes it hard for the grievor to conduct proper family planning. Lastly, it was recommended that this grievance be upheld, and it was clarified that the grievor requests the deputy head authorize funding for SSAH for this year and all subsequent years that the grievor remains at post.
Departmental Presentation
The Departmental representative began by stating that according to NJC By-Laws 15.1.2, all grievances under the NJC shall be decided on the basis of intent of the directive, and as such, the various principles of the FSDs should be considered. The representative referenced the specific wording of FSD 34.9, which states “….may include expenses such as hourly fees charged by a teaching aide/assistant normally provided in a classroom, a support program…” and noted that it seems clear that an allowance may be awarded on an individual basis.
The Departmental representative mentioned that the grievor has contended that these programs do indeed contribute to the dependent’s ability to partake in school and as such, the representative clearly stated that it is the Department’s position that the interpretation of when special education allowances will be approved should not be so narrow and should allow the specific needs of the dependent to be taken into consideration.
The Departmental representative stated that the situation has clearly affected the grievor’s wellbeing and has affected their ability to work as a result. The representative further stated that by denying the reimbursement, the Working Group (WG) committees have placed the grievor in a less favorable position, which has potentially created the grievor’s unwillingness to continue accepting posting and in turn could possibly negatively affect the Department. Additionally, the Departmental representative stated that had the grievor been aware that funding would not have been available to them at post, it is possible the they may not have accepted the posting. Lastly, the Departmental representative concluded by saying the Department supports the grievor’s claim, however, it is recognized that the grievor bears the burden of convincing the Working Group that SSAH fits within FSD 34.
Executive Committee Decision
The Executive Committee considered the report of the Foreign Service Directives Committee which concluded that the grievor had been treated within the intent of the Directive. It was noted that only those programs provided by the Province G MCCSS which support the special education needs of a child and which are required for the child to attend school are considered under the provisions of subsection 34.9. The SSAH program cannot be used for educational programs or educational support and therefore this program does not meet the intent of the special education allowance. As such the grievance was denied.
Notwithstanding, if the child requires support at school, a request could be considered by the appropriate interdepartmental coordinating committee as specified in FSD 34.9.