November 8, 2023
25.4.197
Background
The grievor had a four-year posting in Country J from July 2018 to July 2022. The grievor returned to Country K on August 3, 2022. While away at post, the grievor maintained ownership of their principal residence in City A and rented it out.
In preparation for their move back to their principal residence in City A, the grievor contacted their FSD Client Advisor from Department M on April 29, 2022, to inquire whether the Department would provide reimbursement for the expense of terminating their tenant’s lease early. As outlined in Section 48.1 of the provincial Residential Tenancies Act (RTA), landlords shall compensate a tenant in an amount equal to one month’s rent ($2,495, in this case) if the landlord gives the tenant a notice of termination of the tenancy. On May 2, 2022, the FSD Client Advisor confirmed the Department would cover the cost. However, on August 22, 2022, in response to the grievor’s follow-up email, the FSD Client Advisor informed them that the Department would not be providing reimbursement, as per a Working Group A (WGA) decision from 2018, which specified that FSD 16.3.3 could assist employees in breaking tenancy leases, but only in the specific circumstances outlined in that subsection of the Directive.
Informal discussions took place between the grievor and the departmental Foreign Service Program (FSP) as well as consultations with the Treasury Board Secretariat (TBS), between August-September 2022; the grievance was filed by the grievor on November 14, 2022.
Grievance
The employee is grieving that their organization has violated the Foreign Service Directives as they were informed by an FSD Advisor that funding for the eviction of a tenant from their home, upon return from posting, would be reimbursed, but the reimbursement was denied. As a result, the grievor feels they have been denied entitlements based on the interpretation and application of related sections of the Foreign Service Directives.
Bargaining Agent Presentation
The Bargaining Agent representative began their presentation by noting that the grievor is seeking approximately $2,500 for a penalty that had to be paid to the grievor’s tenant to evict them from their principal residence. Additionally, the representative noted that the grievor was on a four-year posting, which they completed. The representative highlighted this fact as they believed this distinction to be important.
The Bargaining Agent representative indicated that in 2017, there was a change to the provincial Residential Tenancies Act, which made it mandatory for landlords to pay a fee to evict their tenants, regardless of how much notice was given. The representative stated that based on the wording, there is no way for the grievor to have avoided paying this fee. Although the change to the law was made in 2017, the wording in subsection 16.3.3 was not changed during the 2019 cyclical review process.
The Bargaining Agent representative stated that although the grievor does not qualify for 16.3.3 as per the wording, they believe the grievor qualifies for assistance based on the intent of FSD 16; they believe the intent of FSD 16 is to compensate landlords that must recuperate their property, and therefore believe the grievor was treated properly when they were told that they would be reimbursed for the tenant eviction fee. Furthermore, it was indicated that the Bargaining Agent believes the Department misunderstood the intent of the Directive when denying reimbursement to the grievor. Lastly, the representative noted that the grievor planned their return to Country K based on the information that was provided, and that they believe the grievor did their due diligence as a public servant.
After receiving questions from the Committee, the Bargaining Agent representative clarified that the grievor’s tenant’s lease was month-to-month at the applicable time, that the grievor knew of their end date from the beginning, that the grievor provided their tenant with four months of notice and that the grievor confirmed they were aware of the eviction fee when they began their posting.
Departmental Presentation
The Departmental representative began their presentation by going over the facts of the grievance. They indicated that when the Department has foreign service employees, the employee file is transferred to Department M and Department M manages the employee file during the entirety of the employee’s posting. Due to this, the Departmental representative stated the Department does not believe it is their responsibility to cover the expense, as the Department was unable to verify information being shared and it was a Department M employee that provided the grievor with incorrect information. The Departmental representative noted that the grievor did mention they were aware of the fee prior to posting but had assumed it would be covered.
The representative stated that although it is regrettable that incorrect information was provided, the Department has the duty to uphold the provisions within the Directive and the wording of FSD 16.3.3 very clearly outlines situations where an employee would meet the criteria for reimbursement. Lastly, it was noted that the Department agreed to “meet in the middle” and therefore submitted a proposal for the cyclical review of the FSD, which proposed changes to 16.3.3.
After a question from a Committee member, the Departmental representative clarified that this posting would have been determined by the Department.
Executive Committee Decision
The Executive Committee considered the report of the Foreign Service Directives Committee and noted that it could not reach a consensus on whether the grievor was treated within the intent of FSD 16 – Assistance for a Principal Residence. The Executive Committee was unable to reach a consensus on this issue. As such, the Executive Committee was at an impasse.