September 29, 2021
25.4.187
Background
The grievor was assigned to City A, Country M, up until being notified that they were a persona non grata (PNG) on March 30, 2018 and would have to leave the country by April 8, 2018. Prior to this, the grievor had been given approval to proceed to City B, Country N for a medical procedure under FSD 41 – Health Care Travel which was scheduled for April 19, 2018. Due to the grievor’s PNG status, they planned to depart from City A on April 6, 2018 to City C, Province R and planned to travel to City B, Country N for the medical procedure thereafter. Following emails on April 5 and April 16, 2018, it was clarified to the grievor that FSD 41 would no longer apply because of the end of the assignment and return to Canada prior to the scheduled medical procedure.
The grievor departed from City C, Province R to City B, Country N on April 18, 2018, for the medical procedure that was scheduled for the following day and stayed in City B, Country N to recuperate from the procedure. On May 8, 2018, the grievor returned to City C, Province R.
Grievance
As it relates to the matter of the grievor being declared PNG while on assignment abroad, the grievor is grieving that the Employer has failed to make FSD provisions for, and in their absence, grant them access to, FSD 64 and the range of functions, rights, powers and authority ceded to the Employer in the collective agreement, and in doing so, and pursuant to Article 6 of the CA, the Employer has subjected the member to violations of Article 7 and Article 12 of the Constitution Act. These violations include but are not limited to: jeopardizing the security of the grievor and subjecting them to cruel and unusual punishment.
Bargaining Agent Presentation
The Bargaining Agent representative began their presentation by mentioning that this grievance, and requested corrective measures, were denied at the first level hearing in August 2020. It was clarified that this request for reimbursement was originally a claim against the Crown, however, after having discussions with the Employer, the grievor filed a grievance instead and the claim against the Crown was put on hold.
It was stated by the Bargaining Agent representative that they maintain the belief that the Employer was selective in their choice of which directive to use. FSD 64 should have been applied to the circumstances when the grievor was forced to leave City A and had FSD 64 been applied rather than FSD 15, the grievor would have not suffered such a large financial loss or stress. The principle of comparability was referenced, and it was noted that due to the financial burdens placed on the grievor as a result of the forced departure, the grievor has indeed been put in a less favourable situation at post then if they had remained in Canada. Additionally, it was noted that since the departure was classified as normal, rather than an emergency evacuation, the grievor and their family had to pack all their personal items within the nine-day timeframe (from the day they were declared PNG to the date they departed City A).
Regarding the surgery, the Bargaining Agent representative stated that Health Canada (HC) had advised at the time of seeking approval for the FSD 41 - Health Care Travel for travel from City A to City B that the consultation and possible surgery was long overdue.
Regarding accommodations during this time of flux, the Bargaining Agent representative noted that normally, several months before returning to headquarters (HQ) from post, a house-hunting trip is organized to secure accommodations. However, since the grievor was deemed PNG, they were not granted that opportunity. Due to this, the grievor purchased a home (above market value to secure the home quickly) before traveling to City B, as they felt pressure to find a permanent home as soon as possible.
To conclude, the Bargaining Agent submitted that the Employer did not use their discretion appropriately when selecting FSD 15 and that because of the application of FSD 15 rather than FSD 64, the grievor was placed in a less favorable situation and was forced to pay numerous out of pocket expenses.
After the presentation, questions were asked by various Committee members and it was clarified that the grievor was not provided with rationale or guidance regarding the PNG situation, even after having various discussions with the Employer. It was also clarified that the grievor did not explore the option of having the surgery done in Canada after they were advised of the PNG situation and informed that FSD 41 could not apply; they did not contact the Canadian health care system to inquire whether they would be able to have their surgery rescheduled within a reasonable period of time.
Departmental Presentation
The Departmental representative began their presentation by noting that the claim against the Crown was not supported by the Employer, and that this grievance and its corrective measures, were also denied at the second level hearing.
The representative noted that the grievor departed from City A on April 6, 2018 using FSD 15. It was clarified that before the PNG situation, surgery out of country was approved by HC, as it was for a long-term health issue and surgery in Country M was not recommended. Additionally, it was mentioned that the Employer first explored the option of using FSD 38 but then consulted with HC and it was recommended to use FSD 41 for the medical travel from City A to City B. The surgery date was planned to take place in City B on April 18, 2018, but after having the PNG declaration, the travel was no longer eligible under FSD 41. The Departmental representative stressed that the grievor was informed on three separate occasions that FSD 41 would no longer apply to their situation. Furthermore, it was noted that the Employer stated they would pay any cancellation fees for cancelling the surgery, but the grievor made a personal choice to proceed with the surgery in City B, Country N.
Regarding the application of which specific FSD, the Departmental representative stated that all others who were deemed PNG around the same time as the grievor were also relocated using FSD 15, rather than FSD 64. It was clarified that although a PNG situation is not favourable, it is unfortunately a part of the job when accepting a posting at a location that has an unstable relationship with Canada. As such, the PNG situation is not deemed extraordinary or urgent, and therefore FSD 64 did not apply to the situation.
Regarding the financial aspect of this grievance, the representative noted that the expenses, which are being asked to be reimbursed, include accommodation costs, medical procedure expenses, moving expenses for a dependent student, legal consultation, interest fees, etc. It was stated that some of these costs (such as credit card interest fees) are a result of personal choices and are therefore not covered under the FSDs. Additionally, the representative clarified that the Employer has approved reimbursement of approximately $85,000 (in accountable allowances, non-accountable allowances, and claims approved by the department) for the relocation of the grievor as a result of the PNG situation.
To conclude, the Departmental representative stated that the Employer provided the grievor with the maximum flexibility under FSD 15 and as such, they believe the grievor was treated within the intent of the FSD.
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 FSDs. The Executive Committee agreed that this situation was not deemed an emergency, as the grievor was provided with nine days to prepare for departure. No evidence was adduced of any hostilities, natural disaster, or other threatening circumstances. Additionally, the grievor was deemed persona non grata with no intent to return to post; FSD 64 is typically used when the intent is for an employee to later return to post. As such, the grievance was denied.