January 26, 2022
25.4.191
Background
The grievor was on assignment in City A, Province M, for a period of five (5) years prior to accepting a three-year assignment in City B, Country X, to begin in the summer of 2019. The assignment was conditional upon the grievor first undertaking language training in City C for a period of two years beginning August 2017. In January 2017, the employee emailed the Employer to inquire whether they would be able to remain in City A while taking language training, noting the costs savings for their relocation, the fact that they were already partially trained in Language Q, that another FS employee successfully received language training outside City C, and that it would be less of a disruption to their two dependent children. The employee’s request was ultimately denied, and they began language training in City C in September 2017. On August 14, 2019, the employee began their posting in City B, Country X.
On January 13, 2021, the grievor inquired whether their child would be eligible for FSD 34.6 – Postsecondary Shelter Assistance, and whether FSD 35 – Education Travel would also be applicable, as they were enrolled in the University of Province M since 2020 and were planning to move back to Province M from City B in the summer of 2021 to partake in on-campus learning for the 2021-2022 school year. The FSD Advisor confirmed to the grievor that FSD 34.6 did not apply as City C was listed as the employee’s headquarters and the last place of duty prior to City B. Additionally, with reference to FSD 35.3.3, 35.4 and 35.5, the FSD Advisor indicated that entitlements under FSD 35 would be limited based on City C having been the last place of duty prior to the posting. The grievor subsequently filed a grievance with respect to their entitlements under FSD 34.
Grievance
The employee is grieving the Employer’s decision to deny a request for postsecondary shelter assistance for their dependent child, as per FSD 34.6.
Bargaining Agent Presentation
The Bargaining Agent (BA) representative went over the timeline and the facts of the grievance and specifically noted that the grievance was denied at the first and second level hearings based on the definition of FSD 34.6, which states that postsecondary assistance is provided when a dependent student attends an educational institution “in the headquarters city or the employee’s last place of duty in Canada prior to the assignment abroad”.
The BA representative believes the Employer should have taken more things into consideration before denying the grievor the ability to undergo language training in City A, Province M. It was noted that the grievor knew of other Foreign Service officers that successfully attended language training in regions other than City C. The representative also highlighted that, as they understand, the policy stating language training must be taken in the City C region was only a temporary policy change that lasted approximately one year, and as a result, it unfairly affected the grievor. The representative understands the Department was following their procedure but believes that the intent of the Directive should have been more heavily considered, as per NJC By-Law 15.1.2.
Furthermore, the BA representative noted they wish to flag a procedural fairness issue, as the individual that signed the first-level response letter was not present at the first-level hearing. Lastly, the representative indicated they wish to submit that they believe the grievor was not treated within the intent of the Directive and as such, they ask that the grievance and its corrective measures be upheld.
In response to the presentation, the departmental representative made reference to an email within the grievance file where the grievor’s spouse indicated the intention of having the dependent child reside in the family’s principal residence in City A, Province M. The representative was asked to clarify, to which they confirmed this was indeed the intent. After which, the departmental representative referred to FSD 34.6.5 which states “the provisions of this section do not apply where the dependent student resides in the employee’s principal residence or a property owned by the employee and/or spouse or common-law partner”.
Departmental Presentation
The departmental representative went over the facts and timeline of the grievance. The representative highlighted that the posting confirmation for the grievor’s City B posting clearly indicated a requirement to take Language Q training in City C.
The representative also highlighted that the grievor’s request for postsecondary shelter assistance, in accordance with FSD 34.6 was denied at both levels, as the educational institution of the dependent child was not in the grievor’s headquarters city nor in the grievor’s last place of duty in Canada. While referring to the definitions found within FSD 2, the representative noted that City C is considered the grievor’s headquarters city as the grievor is a career foreign service employee, as well as the grievor’s last place of duty in Canada. The definition of “place of duty” found within FSD 2, was specifically referenced, noting that a place of duty “refers to a location in Canada or a post at or from which an employee's duties are ordinarily performed”. The representative clarified that when on language training, the regular duties of an employee become that of the language training.
Due to this, the departmental representative indicated that the Employer believes the grievor was treated within the intent of the Directive.
When provided with the opportunity to comment on the BA representative’s presentation, the departmental representative referred to the BA representative’s comment about procedural fairness and confirmed that the individual that signed the first-level response letter was not present at the first-level hearing. However, it was noted that after the hearing, a detailed memo, which included all the arguments and documents of the hearing, was issued to the signatory of the letter. As such, the Employer believes the principle of procedural fairness was followed correctly.
Executive Committee Decision
The Executive Committee considered the report of the Foreign Service Directives Committee which concluded the grievor had been treated within the intent of FSD 34.6 – Postsecondary Shelter Assistance. The Executive Committee agreed with the report. As such the grievance was denied.