March 27, 2003
25.4.137
The employee grieved the employer's decision to deny his application for storage costs as stipulated in FSD 15.13. The grievor requested reimbursement of cost of storing effects received from his parents when they moved into an extended care facility.
In January 2001, the grievor informed the Department that his parents had to move into a retirement home. Their move required that they dispose of some furnishings and other objects of value, both material and sentimental. Some of these items were left to the grievor as part of an inheritance.
As the grievor was inheriting goods from his ageing parents, he requested that his newly acquired assets be placed in Long Term Storage(LTS) at Crown expense.
The Bargaining Agent representative noted that on January 19, 2001, prior to the move of the grievor's parents, the grievor sent an e-mail message to the employer requesting approval to place goods received from his parents in LTS along with the rest of their household items. The grievor made this request based on the Instruction 3 following FSD 15.13.
In response to the grievor's request, the employer quoted the relevant FSD with an emphasis on "as a result of an inheritance", as follows:
"Where, during an assignment outside Canada, an employee acquires furniture and household effects and/or a PMV as a result of an inheritance, the deputy head shall exercise managerial discretion under Section 15.42 to authorize payment of all or a part of the storage costs only, incurred either in or outside Canada, of such effects until the employee is assigned to duty in Canada."
The Bargaining Agent representative reported that the employer gave the grievor an explanation on the derivation of the word "inheritance" by pointing out that Black's Dictionary defines inheritance as "property which descends to heir on the in testate death of another". The Concise Dictionary defines inheritance as "inheriting, what is inherited" and inherit as "to receive (property, rank, title) by legal descent or succession. Moreover, Webster's Ninth New Collegiate Dictionary defines inheritance as "the act of inheriting property". The representative noted that neither of these definitions make a specific reference to the death of another person.
The Bargaining Agent representative further indicated that the employer also stated that: "The FSD did not, in fact, define the term inheritance but that the intent of the directive is to provide assistance to employees assigned abroad who "inherit" goods". The Bargaining Agent representative was disappointed that the employer had chosen an interpretation that discriminates against employees serving overseas and whose parents find themselves in a situation where they must, for various reasons, move into retirement homes, assisted care facilities or nursing homes.
In summation, the Bargaining Agent representative stated that discretion under FSD 15.42 should have been exercised in this situation.
The Departmental representative began by underlying that the question in this case was essentially whether the department had an obligation pursuant to FSD 15.13, to store at Crown expense, personal property that either belongs to living parents of a career service officer or has been donated "in vivos" to that employee by his/her living parents.
The Departmental representative referred the Committee to the FSD 15.13, Instructions, paragraph 3 and to Section 15.42 a).
The Departmental representative noted that the FSDs do not in fact define the term "inheritance"; however, Black's Law Dictionary provides a precise meaning of the term. The term "inherit" is defined as "to take as heir on death of ancestor". The term inheritance is defined as "property which descends to heirs on the estate of death of another".
The Departmental representative maintained that the intent of the Directive was to provide assistance to employees assigned abroad who "inherit" goods. When inheritance occurs, the employee is responsible for any shipping/transportation costs from the point of pick-up to the site of the LTS facility. The Crown may approve all or part of the incremental LTS costs. In order to obtain such approval, the employee must:
(a) provide proof i.e. a copy of the portion of the will stating that the items listed in the inventory have recently been left to the employee or any of his/her dependants listed on their PCF; and
(b) submit to the respective HPM (FSD Policy and Administration Division) FSD Advisor an inventory list of the inheritance items being shipped to the employee's LTS facility, in the employee's name, prior to their being placed in LTS at Crown expense, otherwise the employee will be responsible for all charges associated with the storage.
The Departmental representative noted that FSD 15 does not assist employees who are dealing with ageing parents. FSDs are negotiated instruments between the Employer and the Bargaining Agents, and furthermore, HPM only administer the FSDs and does not negotiate with the employee nor does HPM have the latitude to administer the FSDs in a fashion that clearly falls outside the intent of the directives. FSD 15.13 only applies in situations of inheritance as a result of a death and subsequent bequeath through a will.
The Departmental representative stated that on June 14, 2001, the grievor grieved the decision to deny his application for storage costs stipulated in FSD 15.13 and requested to be reimbursed the costs of storing effects received from his parents when they moved into a extended care facility.
The grievance hearing took place on June 26, 2001. The Department reviewed the acquisition of additional household effects from his parents as a result of their move from their residence into a retirement facility. In respect to such acquisitions, FSD 15.13 is very specific and provides no flexibility. The grievance reply dated July 9, 200,1 stated that the employee's obligation could not be administrated in a fashion that clearly falls outside the intent of the directives and a grievance denial was signed on that date.
The Departmental representative noted that the Foreign Service Directives were reviewed and the amended FSD 15.13 came into effect June 1st, 2001, including a new provision to add effects to storage when parents moved to an elder care facility. Unfortunately, the new provision became effective on June 1st, 2001 and is not retroactive.
The Departmental representative explained to the Committee that a grievance transmittal form was signed on September 25, 2001 but wrongfully presented again at the second level instead of the NJC final level. On July 11, 2002, an agreement was granted to transmit the grievance to the NJC for hearing. The Department did not object to the employee's grievance being referred to the NJC based on timeliness.
The Departmental representative mentioned that the grievor was advised by the employer that it was prepared to cover storage costs from June 1st, 2001, the date that FSDs were changed. Unfortunately, to allow the reimbursement to be retroactive to June 2001, would have been unfair to other employees who may have been in a similar situation.
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded that the employee had been treated within the intent of the directive as, prior to June 1st, 2001, there was no provision for long term storage of personal and household effects which came into the employee's possession when parents move into a retirement or assisted care facility. Therefore, the grievance was denied.
However, the Committee recommended that the employee apply for payment of storage expenses, as well as costs associated with the removal of effects from storage on return to Canada, for the period from June 1st, 2001 to August 21st, 2001 (covered by revised provisions of a FSD that subsequently came into effect).