Vacation Travel Assistance (80%) Recovery Action

The employees grieved the recovery action undertaken by the Department as a result of an apparent miscalculation of the vacation travel assistance allowance in 2002. The employees requested that all recovery actions be canceled and monies recovered by the Department be reimbursed to them, arguing that an estoppel applied.

On July 29, 2002, the Isolated Posts and Government Housing Committee (IPGHC) issued a communiqué to clarify the vacation travel assistance provisions contained in the Directive with regard to the air fare to be used when calculating the maximum entitlement for the 80% non-accountable payment. Relying on a message from local management that the rate had not changed for trips between their location and the point of departure, the employees requested the 80% non-accountable VTA. In June 2003, the employees received an invoice for the difference between the higher "Y" class fare rate, which they received and the lower "Y" rate which should have been paid. That invoice was the result of compliance with a second communiqué issued by the IPGHC on November 13, 2002, which indicated that "... if an employee requested the 80% non-accountable VTA after July 29, 2002, and received an amount equivalent to the higher "Y" class fare, action should be initiated to recover the difference between the higher and lower "Y" class fare ...".

Presentation of the Bargaining Agent Representative (1)

The Bargaining Agent representative explained the dates and circumstances surrounding each grievor's request for the vacation travel allowance (VTA). The grievors received the approved amount and made plans to travel. Prior to issuing the VTA, the employer was aware of possible changes in reducing the allotted amount. Nevertheless, the employer did not forewarn the grievors of a possible negative financial impact on their entitlement to the VTA. The Finance section issued a cheque for the higher amount. The grievors were misled in believing that the airfare from their headquarters to the point of departure would remain at $2,431.50. The grievors made travel arrangements based on the information provided by the Department.

The representative indicated that the grievors trusted and relied on the employer to properly administer the Financial Administration Act and interrelate the VTA appropriately. The authority to recover an overpayment of benefits, such as a vacation travel entitlement, or recalculation of the entitlement outside the cyclical review process of the National Joint Council, is discretionary as per the provisions of the Financial Administration Act, paragraph 155(3), without mitigation.

The Bargaining Agent representative indicated that following the first communiqué issued by the NJC on July 29, 2002, the fare that was posted on the Internet (August 1, 2002) was $2,431.50, which corresponded to the higher "Y" class fare. When management could not obtain clear confirmation from the airline companies that the fares had been lowered, they decided not to apply the lower air fare.

Since the correct information was not available to the Department prior to the approval of the VTA and the grievors' subsequent travel, the Department had no reason to reverse decisions already carried out and take action to retrieve the difference between the higher and the lower class fare. The NJC and Treasury Board should review the amount of the fare for that period or be estopped from recovering these sums based on the estoppel doctrine. The representative indicated that if the amount of the VTA was not reviewed, then the employer should not be able to recover the monies based on the estoppel doctrine. The employer has the discretion not to recover overpayments such as these under the Financial Administration Act and there was no obligation to recover the amount of overpayment.

It was indicated that the employees relied in good faith on the employer to implement proper procedures. The NJC has an obligation to look into possible limitations, exclusions and availability of the lower fare as some airlines may offer lower fares under certain regulations such as early bookings. The employees should be entitled to travel on whatever "Y" class fare is available on the dates they book or choose to travel and with the airline of their choice. The Bargaining Agent representative stated that as fares may vary, the VTA value should be based on the highest amount to provide employees with the flexibility to which they are entitled under the Isolated Post Directive. The employees are entitled to the amount corresponding to 80% of the return full fare economy class airfare, therefore, the VTA only covers part of the travel expenses.

Finally, the Bargaining Agent representative indicated that the grievors were not responsible for this situation and the VTA amount should be revised for the period between July 29 and November 13, 2002, in order to treat the employees within the intent of the Isolated Post Directive. An economic advantage was not achieved by the grievors with respect to their peers, and with respect to an arrangement entered into good faith (the granting of the VTA entitlements between July 29, 2002, and November 13, 2002).

Presentation of Bargaining Agent Representative (2)

The Bargaining Agent representative indicated that the employer did not inform any of the grievors or the other employees working for the Department at their headquarters of changes regarding the calculation of the VTA.

The Bargaining Agent representative explained that arguments at the first level of the grievance process noted the following elements: "The Director reviewed some of the facts that occurred during the months prior to the communiqué that was issued by the NJC on November 13, 2002. He confirmed that a first communiqué had been issued on July 29, 2002, by the NJC instructing departments to pay the lower "Y" class fare when two or more airline companies offered the same service at different fares. He (Director) said that verifications were made at that time by management to confirm the fares. He said that on August 1^st, 2002, the fare that was posted on the Internet was $2,431.50, which corresponded to the higher "Y" class fare. He also said that they had called travel agencies unable to obtain the information. Management was not able to get clear confirmation from the airline companies that the fares had been lowered. Therefore, a decision was taken by management during a meeting not to apply the lower air fare."

The Bargaining Agent representative stated that several notions should be taken into account in deciding these grievances, such as common sense and equity, the fact that there was a contract between the employer and management, the doctrine of estoppel, and discretionary power.

With respect to common sense and equity, it was generally admitted that the employees acted in good faith; did not try to take advantage of the employer or to get any financial gain from the VTA allowance, relied on past practices and information provided by the employer; were not notified of changes pertaining to the VTA by the employer; booked their vacations based on the information available at the time; were led to believe that they were entitled to their expense reimbursement; were affected by the situation as it had some adverse financial implications; and felt that it would be unfair for the Department to ask its employees to pay for the employer's mistakes.

The Bargaining Agent representative indicated that, in this situation, there was a travel authority/advance signed by both parties and its content must be binding. No employee can submit a travel claim for more than the amount authorized and in return the employer cannot reimburse an amount different than authorized at the time the claim was submitted. There was a commitment and a contract between the parties, which creates obligations and rights to both parties that can not be modified unilaterally. The grievors' decisions were based on this verbal or written agreement. Had they been informed of any change, they would have acted differently.

On the issue of discretionary power, the employer relied on section 155 of the Financial Administration Act in order to recuperate the allegedly owed sums. The Departmental representative stated that it was clear that the employer may request a reimbursement of these amounts, but had absolutely no obligation to do so. There was no clear obligation to recover the amount of overpayment and therefore the employer had to exert a discretionary power.

In conclusion, the Bargaining Agent representative said that the employer had not exercised its discretionary power in a judicial [sic] manner and had not taken all pertaining facts or data into consideration. No analysis was conducted before requesting that the amounts be recuperated. The employer acted as if it had no choice or did not have any discretion. For all the above-mentioned reasons, it was requested that all grievances be allowed.

Presentation of the Departmental Representative

The Departmental representative explained that, in January 2003, the local director advised one of the grievors that the Department had been instructed to initiate actions to recover any excess IPA amounts that had been provided to employees based on the higher fare of $2,431.50. An e-mail was sent to all employees regarding these changes. He said that the Department was advised that the IPGH Committee had reached consensus on the issue of recovery action, and the communiqué dated November 13, 2002, was issued to provide directions to Departments, namely " if an employee requested the 80% non-accountable VTA after July 29,2002, and received an amount equivalent to the higher "Y" class fare, action should be initiated to recover the difference between the higher and lower "Y" class fare."

Management was advised clearly that recovery action had to be taken for employees who were compensated on the basis of the "higher" Y class fare after the July 29^th communiqué was issued. This was reiterated by the employer in January 2003. The Isolated Posts and Government Housing Committee issued the communiqués in order to provide directions to departments.

In conclusion, the Departmental representative indicated that the employees were treated fairly and equitably, the communiqués issued by the NJC were clear and the doctrine of estoppel did not apply to these circumstances. Based on these elements, it was requested that the grievances be denied.

The Executive Committee considered and agreed with the report of the Isolated Posts and Government Housing Committee which concluded that the grievors had been treated within the intent of paragraph 2.6.1 of the April 1, 2002, Directive in that their requests for the 80% VTA was calculated based on the lower "Y" class fare as stipulated in the July 29, 2002, communiqué issued by the NJC to clarify the vacation travel allowance provisions. Consequently, the Committee denied the grievances.

The Committee also noted that discretion to recover debts owing to the Crown rests with the Department under the Financial Administration Act.