April 24, 2024
25.4.198
Background
The grievor works in City A, Country G and was previously at a lower level in City A, Country G from 2017-2022. On October 27, 2021, the FSD Client Service Centre (HEA) hypothetically confirmed that the only FSD that would be affected should the grievor accept another posting in City A would be FSD 56, which ceases once an employee has lived at post for over seven (7) years. On December 23, 2021, the grievor was confirmed for a second four (4) year assignment from 2022-2026.
Following the promotion, the grievor sought an exemption to the discontinuation of FSD 56. Exchanges with the HEA on this subject, including the submission of information by the Deputy Head of Mission, continued until the grievor was advised on May 30, 2022, an exemption would not be granted. The submission from the Deputy Head of Mission indicated that it was at the request of the Heads of Missions that the grievor applied for and was assigned to the new position, in order to manage the transition and the transfer of knowledge to the incoming staff.
On September 15, 2022, HEA’s final response indicated that the grievor made a personal decision to apply to remain at post and therefore the foreign service premiums would cease upon reaching seven (7) years at post under FSD 56. The grievance was filed on October 21, 2022.
Grievance
The employee is grieving the denial of the continuation of the Foreign Service Premium for the duration of their posting until August 2026 and deems this decision unfair and an unreasonable exercise of management rights in violation of the collective agreement, and the spirit and intent of the Foreign Service Directives, in particular FSD 56 relative to the Foreign Service Incentive Allowances.
Bargaining Agent Presentation
The Bargaining Agent representative outlined the facts and timeline of the grievance. The representative indicated there are three distinct arguments from the Bargaining Agent’s perspective. The first argument being that they believe the Department acted in bad faith. It was indicated that it is believed the grievor did their due diligence and acted in good faith throughout the process, and that the grievor should have been provided with a more detailed briefing before their posting. Although the grievor was aware that some allowances would no longer apply if they continued to remain at the same post, the grievor sent an email to their FSD Client Advisor on October 21, 2021, to inquire further. It was only on September 15, 2022, almost one year later and after the grievor had already accepted their new posting, that the grievor received a concrete response from the Department, indicating that their request for an extension of the FSD 56 allowance was denied. The Bargaining Agent stated they are not of the opinion that the grievor accepted their posting while knowing the extension would not be granted.
The second argument relates to program related exceptions. The representative referred to an email from an FSD Client Advisor on September 15, 2022, that stated the Foreign Service Premium (FSP) stops at the seventh year at post, unless there are truly exceptional circumstances, completely outside the control of the Department. The representative argued that using such terminology is expanding the language of the Directive, as said terminology is not found within the Directive, and that by doing so, the Department is inferring meaning. The final argument centred around program needs and referred to the first level response, which indicated there were no program related needs that would have required the grievor to remain at post. The representation argued that it would appear there were program related needs, as the grievor was told that a very special exception was made for them to remain at post, and because the Head of Mission (HOM) requested an extension of the FSP for the grievor. For the reasons listed above, the Bargaining Agent representative asked that the grievance be upheld.
Following a question from a committee member, it was confirmed that the grievor did not ask what the nature of the “very special exception” was that was made on their behalf. Additionally, the Bargaining Agent’s presentation mentioned the principle of comparability and indicated the grievor was placed in a less favourable position due to the denial of the continuation of the FSP. When asked to explain this statement, the representative noted that it was included in the impact statement from the grievor as there are high costs of living in City A and had the grievor been aware that the FSP would not continue, they may have applied to other posts with lower costs of living.
Departmental Presentation
The Departmental representative noted that on October 18, 2021, the grievor emailed their FSD Client Advisor to inquire about how their FSP would be impacted beyond the seven (7) year mark at post; HEA responded and hypothetically confirmed all allowances other than FSP would remain the same. On January 6, 2022, the grievor was informed by HEA that they were the chosen candidate for the selection process. The representative noted that on May 30, 2022, the grievor’s request was reviewed and the grievor was informed the extension request would not be granted. However, it was noted that the grievor has stated the Department responded too late and only provided a concrete answer once they had accepted the posting. It was further noted that the grievor stated they did not originally intend to stay in City A, but they were approached by the Department, and they believed they had a good rationale for the FSP allowance to continue.
The Departmental representative indicated that the assignment and pool management team maintains that the grievor themself requested to stay in City A and that no program-related need existed. Additionally, HEA confirmed they did not make the request. It was further noted that although City A confirmed they spoke with the grievor and encouraged the grievor to apply to the selection process, they had the same conversation with other candidates.
The Departmental representative reiterated that a business case was not put forward by HEA or management and that there was no program related need for the grievor to remain at post. Furthermore, City A is a non-hardship posting and is highly sought after. By assessing other candidates in the selection process, the representative indicated this shows the mission was willing to hire other candidates. To conclude, the representative noted that the Department believes they did not mislead the grievor and that the grievor’s decision to remain at post in City A was a personal choice.
Following a question from a committee member regarding the indication that part of the assessment criteria used during the selection process was the pressing need for business continuity, the Departmental representative indicated that said need was not considered a program-related need.
Executive Committee Decision
The Executive Committee reviewed 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 56 – Foreign Service Incentive Allowances. The Executive Committee was unable to reach a consensus on this issue. As such, the Executive Committee was at an impasse.