January 25, 2023
25.4.194
Background
The grievor was working at Location A in City B, Country M. The grievor contacted the Head of Mission (Head of Mission) and submitted an FSD 50 request to assist in their family’s eight-day trip to Country N. The purpose of the trip was to address a number of time sensitive financial and administrative issues for the grievor’s spouse, a citizen of Country N, that required in-person interactions.
At the time of the request, the Center for Disease Control (CDC) travel advisory indicated that unvaccinated travelers should avoid non-essential travel to Country N due to the risks associated with the COVID-19 virus. The Employer noted that vaccination status impacts the risk assessment of travelling. At the time of the request the grievor and their family were not vaccinated against COVID-19. Citing the elevated level of associated risk, the Head of Mission denied the grievor’s request.
Grievance
The grievor is grieving the Employer’s decision to deny their FSD 50 request.
Bargaining Agent Presentation
The Bargaining Agent representative started their presentation by going over the timeline of events and summarizing the first level response. After which, FSD 50.1.1 was referenced and the representative emphasized the use of the word “shall”, stating that the word “shall” means something should happen, that the language does not stipulate that permission of the Head of Mission (Head of Mission) is required and that this provision does not say it is subject to managerial discretion. As such, the representative indicated that they believe the Employer lacks the scope and authority to negate the intent of the Foreign Service Directives (FSD). The Bargaining Agent representative then referenced subsection 15.1.2. of the NJC By-Laws and noted that grievances should de decided based upon the intent of the Directive in question.
The representative referred to the second level reply and noted that a Bargaining Agent argument from the second-level hearing was that the Employer’s perception of duty of care disregarded the intent of the FSD, as the grievor should have been entitled to post travel assistance. It was then noted that the grievor incurred travel expenses due to the denial of their FSD 50 request. The Bargaining Agent representative ended their presentation by stating they would like the corrective measures to be applied and for the grievor to be made whole.
After questions from the Committee regarding their statement “the Employer’s perception of duty of care”, the Bargaining Agent representative explained that the Employer denied the grievor’s request as they perceived it to be the right thing to do. It was then noted that at no point did the Employer contact the Bargaining Agent to discuss the situation, and due to this, the assumption was that the Employer should have been following the Directive as it is written and intended to be interpreted.
Departmental Presentation
The Departmental representative began their presentation by noting that between March 16, 2020 and June 29, 2020, no FSD 50 requests were approved due to the global COVID-19 pandemic, following the recommendation of an interdepartmental working group. From June 29, 2020 to July 13, 2021, the use of FSD 50 was limited to travel to Canada and within the post country. After which, the GAC broadcast message from July 13, 2021, which stated FSD 50 travel was limited to destinations deemed safe from a COVID-19 standpoint and the Heads of Mission were placed in the best positions to determine whether travel would be safe, was referenced. Furthermore, the Departmental representative noted that at the time, the CDC advised against travelling to Country N due to high-risk levels associated with the pandemic, and that considering this information, the Head of Mission denied request as the grievor, and their dependants, were unvaccinated against the COVID-19 virus. Additionally, it was indicated that the Head of Mission was concerned with potentially adding to the already overwhelmed healthcare system in Country N.
The representative acknowledged the exceptional circumstances of the situation, due to the pandemic, and referred to the scope of FSD 50. It was then noted how the Directives were last modified in 2019 and therefore not intended for situations such as the global COVID-19 pandemic. Due to this, the representative stated FSD 50 had to be managed to limit the risk of exposing employees to the virus. The representative also stated that the grievor was in receipt of FSD 56.11 – Post Specific Allowance and that this allowance could be used for miscellaneous travel requirements. Lastly, the Departmental representative noted that at no time was GAC informed by the Bargaining Agent that its parameters were in conflict with the intent of FSD 50.
After questions from a committee member regarding the Departmental representative’s comment on how the Bargaining Agent did not contact GAC, the Departmental representative indicated that an ad hoc meeting took place, but that the grievor was not discussed at said meeting. After further questions from committee members, it was noted that the meeting appears to have been a consultation meeting, rather than an NJC FSD meeting. When asked about the framework for risk assessment that the Head of Mission used to make their decision, the Departmental representative referred to Annex A (page 8) of their presentation and noted that the same information was provided to the Head of Mission. It was then clarified that the grievor did travel, regardless of the Employer’s denial of the FSD 50 request, and that the denial was intended to discourage the grievor to not travel. The representative was then asked whether the Employer denied the grievor’s request as the travel was not deemed essential, or due to safety (even if the travel was deemed essential); the Departmental representative stated the request was denied as it was deemed non-essential.
Executive Committee Decision
The Executive Committee considered the report of the Foreign Service Directives Committee that noted it could not reach consensus on whether or not the grievor was treated within the intent of FSD 50 - Post Assistance Travel. The Executive Committee was unable to reach a consensus on this issue either. As such, the Executive Committee reached an impasse.