September 29, 2021
25.4.188
Background
The employee and their family arrived at post (City A, Country M) in August 2018 for a three-year posting. The employee has two dependent children, one of whom is permanently disabled and requires full-time care. In 2018 and 2019, when the employee attempted to find a school that could accommodate the needs of their disabled child, they were rejected by every approved school on the list of compatible schools. Due to this, the employee pursued other options for their child’s education and decided to enroll their child in Institution X. This institution is not an accredited school, nor is it recognized by the local government in Country M; it is one part a licensed medical facility (consultation center with therapists) and another part a licensed Learning Centre with a psychology department.
In June 2019, Working Group B (WGB) approved the reimbursement of tuition fees of Institution X for the 2018/2019 and 2019/2020 school years (SY), as well as the reimbursement for education transportation of one round trip (at the lower kilometric rate) per day. It is to be noted that these WGB approvals were made on an exceptional basis, as these costs were already paid for by the Mission, without the proper authority to do so. On June 7, 2019, the employee was notified of this decision. At this same time, the employee was also notified that moving forward, if their child continued to attend Institution X, they would have to resubmit a request to WGB every SY.
The employee subsequently reached out to the Institution Y of City A in 2019, which is a school on the list of approved schools and worked with the school to develop a program that would satisfy the needs of their disabled child. As such, rather than re-applying to WGB for approval of reimbursement of costs associated to attending Institution X for SY 2020-2021, the employee’s disabled child started attending an approved school on the list of compatible schools in September 2020.
Regarding transportation costs associated with education, the employee’s spouse has been serving as a driver and personal support worker for their child since February 2019. This includes driving the child to and from school each day, as there is no transportation service provided by the educational institution and the Embassy was unable to find a transportation service that properly supported the needs of the child.
Grievance
The grievor is grieving that they have been discriminated against as a result of the Employer’s interpretation and application of FSD 30 - Post Transportation and Related Expenses and FSD 34 - Education Allowance. The grievor contends that they are being treated in an adverse and differential manner, which is in violation of article 16.0 of the Collective Agreement, the intent of FSD 30 and 34, and the Canadian Human Rights Act.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the Department’s treatment of the grievor is said to be equal to that of other employees and thereby fails to address the grievor’s particular set of circumstances, namely the need for accommodation with respect to the dependant’s education and transportation for education purposes. This treatment has created barriers to the grievor’s employment as well as to their family. In so doing, the Department has failed to recognize the grievor’s family situation and discriminated against the grievor’s child based on their disabilities. The resulting interpretation of FSD 30 and FSD 34 violates the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms, the intent of FSD 30 and FSD 34 and the collective agreement.
The Bargaining Agent representative explained that the grievor is seeking predictability in their child’s schooling through the end of their posting in 2022. The requirement that the grievor reapply to every school on the approved school list annually presents a significant administrative burden. The time required to do so would be better spent on the grievor’s work and family responsibilities. Furthermore, the grievor has previously supplied extensive documentation to substantiate their child’s condition and needs which are not expected to change. It was argued that having to reprove the dependant’s disabilities on an annual basis to obtain the necessary supports is demeaning.
The Bargaining Agent representative indicated that the Department is focused on the facility’s licensing which designates it as an education consultant and not a school. It was noted that international schools at the post are not required to accept students with disabilities and those on the approved schools list had previously rejected the grievor’s child. It was argued that FSD 34 does not limit the provisions to a school but includes foreign education facilities. The Bargaining Agent representative submitted that the institution in question is better equipped to meet the child’s needs and the grievor has provided documentation to this effect.
Additionally, it was argued that WGB’s approval of a single return trip to transport the child to school in accordance with FSD 30.7 is insufficient to cover the actual costs incurred. The Bargaining Agent representative submitted that the family has no other choice but to transport the child using their personal motor vehicle as the school does not provide transportation and a taxi cannot accommodate the child’s equipment. Also, a taxi driver would not have adequate training to care for the child or have undergone appropriate record checks. As a result, the grievor’s spouse is required to transport the child to and from school. It would be unreasonable to require the spouse to remain on site for the entire day. Consequently, two daily return trips are required. Had the grievor been in Province R, adequate transportation would be provided for the child at no cost to the grievor.
The Bargaining Agent representative also clarified that the grievor’s child was accepted to an approved school in 2020-2021 and has tentatively been accepted to an approved school for 2021-2022. Furthermore, the grievor has filed a complaint with the Canadian Human Rights Commission with respect to this matter.
The Bargaining Agent representative therefore requested that the grievance be upheld and that the identified corrective measures be granted.
Departmental Presentation
The Departmental representative explained that while the Mission had erroneously approved the cost of education allowances and education transportation for school year 2019/2020, the grievor was not penalized for the administrative error. At no point was the grievor guaranteed that they would be granted these allowances under FSD 34 and FSD 30.7 indefinitely.
It was noted that the grievor made a personal choice for their child to attend the centre in question, which is not listed as one of the compatible schools for the post. The grievor did not notify the departmental FSD Bureau of the initial situation, nor did they submit a request to WGB for approval of the exceptional educational institution prior to enrollment. The representative further indicated that the facility is not recognized as a licensed school at post, but rather it is listed as a full-time therapy center providing special education programs.
The Departmental representative submitted that as the child’s needs and the programming offered by the approved schools at post could change over time, the grievor was asked to resubmit a request under FSD 34 through WGB for school year 2020/2021 and beyond.
The Departmental representative also indicated that the grievor was previously granted education transportation by the Mission by taxi, up to January 2019. Due to personal safety concerns for their child, the grievor elected to acquire and use a personal motor vehicle (PMV) as the primary method of education transportation. Consequently, the grievor is subject to the kilometric/mileage rates set by the NJC Travel Directive. Furthermore, as education transportation fees by PMV are based on the kilometric/mileage rates specified in FSD 2, the Department has no authority to grant additional reimbursements. The representative stated that despite this the grievor was advised that there are flexibilities within FSD 30 to grant allocations through other methods of transportation, with the approval of the Mission. The grievor opted not to pursue this option.
The Departmental representative therefore submitted that the grievance and requested corrective measures should 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 FSD 34 insofar as the education allowance was provided for the education of the dependant. The Executive Committee, however, was of the view that the grievor was not fully treated within the intent of FSD 30.7 in that two return trips per school day should be covered to include the transportation expenses of the parent who is escorting the dependant based on the lower kilometric rate as specified in FSD 30.7.2. Consequently, the Executive Committee upheld the grievance to this extent.