April 25, 2022
41.4.140
Background
The grievor occupies a position with Department X and was impacted by the closure of Location A in September 2013. On December 17, 2012, in preparation for the closure, the grievor’s position was changed to report to Location B. At the time of the relocation, it was the Employer's position that the grievor was not entitled to any relocation benefits as it considered the employee's place of duty to be the City C area. Following the NJC Executive Committee decisions 41.4.56 and 41.4.62 dated December 18, 2013, which concluded that the City C area could not be used as the place of duty in relation to the Relocation Directive, relocation assistance was offered to the grievor on June 10, 2014.
The grievor signed a one-year lease agreement in August 2014. The grievor was able to negotiate to begin occupancy on October 1, however, did not receive the keys until October 15, 2014. Later in October, the grievor received another appraisal for their home at origin and on the 29th of October, elected not to sell their home at origin.
A new Contracted Relocation Service Provider (CRSP) advisor was assigned to the grievor’s file at the beginning of October 2014. The grievor moved on December 16, 2014. The grievor requested Temporary Dual Residence Allowance (TDRA) in the amount of $2400 for the months of October and November 2014, the invoice for which the CRSP did not receive until July 2015, after the relocation file was closed. This resulted in the Department and the CRSP requesting information as to why there was a delay in the grievor moving in and requested that the grievor repay the TDRA.
Grievance
The employee is grieving the decision that they must repay two (2) months of rent, totaling $2,400.00 related to Temporary Dual Residence Allowance (TDRA) in breach of the NJC Relocation Directive and any other Acts, Legislation, Regulations, Policies, Agreements, Memoranda, Articles or other documents whatsoever that may apply.
Bargaining Agent Presentation
The Bargaining Agent representative reviewed the purpose of the TDRA under the Directive and noted that the grievor was initially reimbursed for two (2) months of TDRA, which was then clawed back in 2016. The representative argued that the circumstances leading to the use of the TDRA were outside the grievor’s control. The first of the circumstances was that the grievor’s lease took effect on October 1, but the grievor was unable to move in as the previous tenants were still living there and left property in the residence until the middle of the month. The representative noted that the grievor was explicitly denied access to the residence by the landlord until the previous tenants’ property was removed from the premises. The representative asserted that the grievor had no means to remove the people or property from the premises and therefore this was outside the grievor’s control.
The representative also noted that the grievor was in the process of determining whether or not to sell their former residence, indicating that there had been issues with the appraisal, which the grievor was still trying to get corrected. The representative argued that it took until mid-October for the appraisal to be properly completed, and that this delayed decision directly impacted the grievor’s decision to move. They also noted that there were additional and substantial renovations required at the residence that needed to be completed prior to the grievor being able to move into the residence. Due to the distance from the grievor’s permanent residence as well as some medical issues, the grievor was unable to visit the residence frequently enough to complete the renovations any earlier than they did. The representative additionally noted that the grievor did receive the elect not to sell incentive however did not seek recourse or relief from the landlord in terms of prorated rent or other remedy under the Tenant’s Act. The representative indicated that while some of these were arguably within the grievor’s control, others clearly were not and that the grievor should be allowed the two (2) months of TDRA, or at least a portion thereof.
The representative therefore requested that the grievance be upheld.
Departmental Presentation
The Employer representative reviewed the facts of the grievance, noting that the grievor had been commuting for approximately two (2) years, which they asserted meant that the grievor had flexibility in choosing their moving date. The representative also noted that the grievor stated their decision to postpone the moving date was based upon the counsel of the CRSP agent, but countered that the grievor was first counselled on August 8, 2014, and that the new CRSP agent was not able to hold a final planning session with the grievor until December 2, 2014. The representative interpreted this to mean the grievor’s decision to sign a lease commencing on October 1, 2014, yet move two (2) months later was not based on the advice of the CRSP agent. The representative noted the grievor’s argument about the unit requiring renovations and indicated that this is within the grievor’s control. The representative further asserted that the grievor was not required to select that rental address and could have selected another unit that did not need two (2) months’ worth of renovations.
The representative noted that, given the above information and the grievor’s lack of presenting any situation that was truly outside of their control, it was determined that the grievor was not eligible for the TDRA they had received, and that, as demonstrated in NJC grievance 41.4.51, the Department was required to seek reimbursement of the overpayment in accordance with paragraph 2.2.2.11 of the Directive. The representative noted that, while the issue with the previous tenants’ continued occupancy of the unit may have been outside the grievor’s control, there were other more appropriate means of compensating the grievor in this situation and that is not appropriate for the compensation be paid out of public funds.
Therefore, the representative requested that the grievance be denied.
Executive Committee Decision
The Executive Committee considered the report of the Relocation Committee which concluded the grievor had been treated within the intent of the Directive. The Executive Committee accepted the report. The Executive Committee determined that the reasons for delays were within the grievor’s control and noted that the grievor should not have paid for the full amount of rent if they did not have access to the premises for the entire time. As such the grievance was denied.