September 29, 2021
25.4.189
Background
The grievor was residing at post (City A, Country M) with their dependant (spouse). On January 16, 2020, the employee-initiated conversations regarding a request for accouchement travel, between April-May, for their spouse. The Employer informed the employee that the birth should happen at post if possible, and that accouchement at an alternate location would require approval from Health Canada’s (HC) Overseas Medical Advisor, as well as approval from the Head of Mission (HOM). On that same day, HC recommended the travel away from post to a third location and informed the employee that travel before April could be considered. On January 22, 2020 the HOM approved the employee’s travel request under FSD 41 – Health Care Travel.
On March 16, 2020, the Employer issued an emergency evacuation notice due to COVID-19, stating that all designated vulnerable employees and dependants must evacuate and noted that evacuations to locations other than the headquarters city must be approved by HEA. On March 17, 2020, the HOM informed the employee of the Employer’s decision to have staff repatriate and the employee confirmed their understanding. On March 19, 2020, Health Canada’s Overseas Medical Advisor verbally informed the Employer that travel for the spouse was no longer recommended to the third location and rescinded the approved travel destination. On that same day, the employee’s spouse boarded a plane from City A to Country N. A few minutes later, the FSD Advisor emailed the HOM to inform them that HC had revoked their recommendation to travel. It should be noted that the employee was not copied on this email. Soon after the spouse boarded the plane, the HOM contacted the employee to check-in and ensure all was in order for the planned travel. Shortly after that, the employee was notified of the rescinded decision via text message. The employee attempted to but was unable to reach their spouse as they had already boarded the plane.
On April 8, 2020, in response to an email from the employee dated March 20, 2020, the Employer emailed the employee to inform them that HEA approval was required due to the travel destination being a third location and that since HEA approval was not granted prior to travel, the spouse is considered to be on personal travel. On May 27, 2020, the Bargaining Agent emailed the Employer to initiate informal discussions. Informal discussions ceased on July 20, 2020 and the grievance was subsequently filed on July 23, 2020.
Grievance
The employee is grieving the Employer’s decision to rescind its approval of their spouse’s accouchement travel under FSD 41, from City A, Country M to City B, Country N.
Bargaining Agent Presentation
The Bargaining Agent representative began their presentation by going over the timeline provided in their presentation documents. The representative noted that when the evacuation order, under FSD 64, was issued via email on March 16, 2020, the employee’s spouse still had approval for travel under FSD 41, and as such, it was unclear whether the spouse was to evacuate under FSD 64 or continue with planned travel under FSD 41. Additionally, the representative mentioned that in an email from the FSD Advisor to the Employee on April 8, 2020, the FSD Advisor advised the employee to contact Health Canada once more to inquire about whether FSD 41 would be recommended. The representative noted that this indicates that on April 8, 2020, the Employer was still providing the employee with unclear advice regarding which FSD was applicable.
The BA representative continued by noting that at the time of travel, when the spouse was boarding the plane, there was no evidence that the spouse’s status under FSD 41 had changed or was going to change. The representative stressed the fact that between the evacuation order (March 16, 2020) and the date of travel (March 19, 2020) the employee received no correspondence from the Employer that advised them to either cancel or postpone their spouse’s travel. Additionally, the representative stressed that the decision to rescind the spouse’s approved travel under FSD 41 was made only after the spouse had already boarded the plane; in which case it was too late for the spouse to deboard the plane as the gate was closed. Furthermore, the representative indicated that since the employee received prior approval for their spouse’s travel, the travel arrangements were made with said approval in mind, and since no updated decisions were communicated to the employee, the employee did follow the most up-to-date advice and instruction from the Employer, at the time. The representative also stated that since the employee made their travel decisions based on the Employer’s approval at the time, it is the Bargaining Agent’s belief that the employee should not be penalized for the consequences of the Employer’s last minute decision to rescind approval.
The BA representative referred to the second level reply and mentioned that although the Employer is of the belief that the employee did not inform the Head of Mission (HOM) of the change in travel date, there is evidence on file that demonstrates the HOM was in fact informed of the change in travel date. Additionally, the representative mentioned that it is their belief that the spouse’s situation was not affected by COVID-19 at the time, as the travel destination was not indicated as a COVID-19 hot spot at the time. The representative asked the Committee members to put themselves in the place of the employee and spouse, in an attempt to explain that the employee’s main concern was to ensure their spouse would be able to give birth in a place of comfort, with a support system, in a country they were familiar with. It was noted that Health Canada’s Overseas Medical Advisor’s original approval was indeed for these reasons, so the spouse could be with their family, as stated in an email from January 16, 2020.
Lastly, it was mentioned that since travel approval was originally received from the HOM, it is their understanding that someone of the same level of authority would be required to rescind the decision, however, evidence on file seems to depict that the decision to rescind approval came from the FSD Advisor only. The BA representative ended their presentation by stating they believe the grievance should be allowed, as they believe the employee was not treated within the intent of the FSD.
Departmental Presentation
The Departmental representative began their presentation by going over the timeline and noting that additional approval was not sought for the change in travel, and as such, the Mission was not made aware. Further to this, it was mentioned that in October 2020, the Department tried to seek retroactive approval for the employee to join their spouse in Country N, but approval was denied by the Deputy Minister.
The representative noted that at the second level grievance hearing, the employee indicated that at no point did the Employer state that additional approval was required. The representative acknowledged the fact that the decision to rescind approval was not made in time and that there is no mention in the Directive that employees must inform Departmental authorities of changes in travel. However, the representative pointed out that as an employee under the provisions of the FSD, the employee has a duty to inform Departmental authorities of changes and keep them up to date. Additionally, the Departmental representative stated that the Employer has a duty of care for its employees, and had the Employer gone against Health Canada’s advice to rescind the travel approval, they would be going against said duty of care.
Lastly, the representative acknowledged the mention of family support, but indicated that at the time, the situation had changed and the Employer’s main concern was to ensure the employee and the spouse were in a safe location with good healthcare; Canada was the most suitable location at that time. The presentation ended with the Departmental representative stating that it is the Employer’s belief that the employee was treated within the intent of the FSD.
Executive Committee Decision
The Executive Committee considered the report of the FSD Committee which concluded that within the context of the pandemic, at the time of the spouse’s travel, it was no longer suitable for the health care travel to proceed, and consequently, it was agreed the grievor had been treated within the intent of FSD 41. As such, the grievance was denied.
It was noted, however, that the Department’s decision to rescind the FSD 41 approval was only communicated to the grievor once their spouse had boarded the plane to Country N. Recognizing that the deputy head would have covered the travel for the spouse to leave Country M during the pandemic under the provisions of FSD 64, the Executive Committee recommends that the deputy head reimburse the amount for the air travel for the spouse in an amount not to exceed the cost incurred for the employee’s air travel from post to City C for the emergency evacuation.