Background

The grievor works for Department A (the “Department”). In December 2018, the grievor accepted a four-year posting to City D, Country P that was set to commence on August 18, 2020. The grievor has two dependants that were registered under their name and received assistance in accordance with Foreign Service Directive (FSD) 33, for attending a lycée, from school years (SY) 2014-2015 to 2020-2021; this included a one-time exception to the limitation of six-years, as per subsection 33.2.2 of the Foreign Service Directives (the “Directives”). Due to the COVID-19 pandemic, the posting to City D was delayed by one year, for operational reasons. As the grievor had aging and ill parents to care for, the grievor decided to cancel their posting to City D on June 17, 2020.

The grievor’s spouse became a rotational employee in August 2019. As the grievor had reached their maximum amount of assistance as per FSD 33.2.1, the grievor’s spouse requested assistance for their dependants to continue attending the lycée during SY 2021/2022. As the dependants were attached to the grievor’s posting confirmation, the spouse’s request was denied. On April 20, 2021, the FSD Advisor informed the employee-couple of the denial and indicated it was suggested that the grievor’s spouse submit a request to Working Group B (WGB). The case was discussed at HEP and HEA and the grievor was informed of the denials on April 30, 2021. The request was then subsequently denied by WGB and suggested the grievor submit a request to the deputy head, as per FSD 33.2.2 for an exception to the limitation prescribed in FSD 33.2.1. On November 24, 2021, the grievor and their spouse were informed that the deputy head denied the request.

The grievor and their partner corresponded with the Department throughout January and February 2022. On February 1, 2022, and again on March 7, 2022, the Department informed the employee-couple that their requests remain denied. The grievance was filed on March 10, 2022.

Grievance

The grievor, in advance of their departure for a posting to City D, surrendered the posting back to the FAB (FSITP Assignment Board) in response to the official pandemic policies of both the Canadian and Country P governments where the COVID-19 situation was declared an emergency, and where the grievor wished to take heed of the Directives to shelter in place in the near term.

The grievor, for having accepted the most up-to-date official medical and travel advice of the time, is now being subjected to a subsection 33.2.1 injustice pursuant to subsection 3.7.4 of the FSD and has been forced to file this grievance in accordance with section 33.01 of the CS Collective Agreement.

Bargaining Agent Presentation

The Bargaining Agent representative began by explaining that the language of the file was switched on their behalf, as they asked to present in French because there is a discrepancy between the English and French wording of FSD 33 – Education Assistance at a Lycée in Canada. The English terminology of subsection 33.2.2 says the deputy head may consider one exception to the limitation, whereas the French terminology is more flexible and does not specifically stipulate only one exception. The representative also noted that the denials at the first and second level of the grievance process focused on the English terminology. Additionally, the Bargaining Agent representative mentioned that although the English version of subsection 33.2.2 indicates one exception, it does not establish a period of time for the exception.

The representative indicated that the first exception, granted by the Employer to the grievor, was due to the exceptional circumstances of the COVID-19 pandemic, as it was beyond the Employer and employee’s control. It was stated that this kind of exception was granted to the Employer themselves in 2021, and that the representative believes these same exceptional circumstances still applied for the period in question, the 2021-2022 SY. It was noted that it was not until end of 2021 and early 2022 that travel restrictions were lifted in Country P and Canada.

The Bargaining Agent representative noted that the grievor is asking to be reimbursed for the school fees for the 2021-2022 SY (at the lycée in Canada) as they had paid $10,000 in school fees to secure a spot for their children at a school in Country P, and that this gesture shows that the grievor was interested and eager to be posted to City D, if not for the pandemic. The reason the grievor did not proceed with their planned posting to City D was due to family obligations, as the grievor had elderly parents in need of care, and because the pandemic would not allow the grievor to return promptly to Canada, if needed.

Following questions from the Committee, the representative confirmed that the grievor’s trip to City D in February 2020 was to secure an apartment and a school for their children, which they believe displays the grievor’s dedication to being posted in City D. It was further confirmed that the grievor never went to City D on posting, as it was postponed.

Departmental Presentation

The Departmental representative began their presentation by going over the timeline of the grievance. The representative specified that in 2021, the grievor decided to stay in Canada and not go on their posting to City D to care for their elderly parents. In September 2021 the grievor submitted a request to the Deputy Head to ask that they receive an exception to continue having the lycée school fees paid in 2021-2022. The representative noted that this request was denied, with an explanation that stated the grievor did not meet the criteria of operational requirements or extenuating circumstances beyond the employee’s control to obtain an exception, as per subsection 33.2.1. The Departmental representative agreed with the Bargaining Agent representative that there is a difference between the English and French versions of the Directives, as the French seems to provide more flexibility, but stated that the Employer is nonetheless of the opinion that the grievor was not entitled to apply for another exception, as the grievor’s circumstances did not meet the requirements as described in the Directives.

Regarding the grievor’s decision to remain in Canada in 2021, the representative mentioned that at the time in 2021, vaccinations for COVID-19 had begun and processes were in place within departments. Therefore, the grievor’s decision to remain in Canada was viewed as a personal choice.

A Committee member asked the representative whether the grievor was offered a posting in City P in 2021 and declined, or if there simply was never the option for the grievor to go to City P in 2021. The representative indicated they would inquire about this question and provide a response promptly; the response was received in time for the Committee to deliberate and clarified that the grievor would have had to reapply for the City P posting, even though it was confirmed beforehand, but decided not to reapply in 2021 due to the pandemic.

Executive Committee Decision

The Executive Committee considered the report of the FSD Committee which concluded that the grievor was treated within the intent of the FSD as it was confirmed that they had not accepted an assignment abroad in multiple years. As such, the grievance is denied.