November 16, 2005
21.4.875
The employee grieved that the employer did not respect the NJC Integrated Relocation Program (IRP) Directive, including its key principles, notably by refusing to pay for (1) the expenses related to the private sale of the employee's residence in Newfoundland; (2) the legal and other expenses associated with the purchase of land and the construction of the house in New Brunswick, and (3) the cost of storing the employee's personal effects and furniture pending the building of the employee's house.
The matters being grieved are linked in part to the grievor's prior relocation on a temporary two-year assignment. During the temporary assignment, the principal residence and the permanent/regular workplace remained in Newfoundland.
The Bargaining Agent representative began his presentation with some background information on the grievance.
The employee, having accepted a temporary assignment of two years, left St. John's, Newfoundland in October 2002 and began an assignment in Moncton, New Brunswick under the long-term relocation plan. Only the essentials were moved to Moncton. The grievor maintained this residence in Newfoundland because they were to return after the assignment, which was scheduled to be in November 2004. For more than 10 months, the grievor paid for mortgage, utilities and maintenance in Newfoundland, as well as rental accommodations in New Brunswick.
After one year of renting in New Brunswick, the grievor bought a small house with a basement apartment that would assist in paying the two mortgages. Under the relocation plan, the Moncton department paid for both the legal fees and the CHMC fees. After the purchase of the house, the grievor decided to accept a full-time position in New Brunswick, hence departing from her assignment earlier than anticipated. The grievor would no longer be returning to Newfoundland and decided to sell the home in Newfoundland, which would necessitate assistance under the Relocation Directive. The grievor's new home in New Brunswick could not accommodate personal effects (furniture) and thus they had to be placed in storage until a more appropriate and permanent residence could be located.
The Newfoundland department agreed to underwrite the cost of moving all of the grievor's belongings to Moncton. However, it was determined that under the Relocation Directive, the grievor was not eligible for any assistance because the grievor was not actually living in the Newfoundland house immediately prior to the relocation.
The Bargaining Agent representative maintained that, according to the Relocation Directive, the Departmental National Coordinator (DNC) is responsible for ruling on requests for reimbursement that fall within the intent of this Directive, but whose special circumstances have not been specifically addressed. In this case, the Directive did not adequately address the grievor's particular circumstances and furthermore, the DNC was never approached in this matter and never ruled on the grievor's request.
The Bargaining Agent representative believed that, in considering this case, the Government Travel Committee should examine the principles highlighted in the NJC Integrated Relocation Directive, namely: trust, flexibility, respect, valuing people, transparency and modern relocation practices.
The Bargaining Agent representative further explained that the issue is simply that the employee's substantive position was in Newfoundland; their true, permanent residence was therefore there – perhaps not for CRA or Income Tax Act purposes, but as a matter of practical common sense. Clearly, the CRA definition of principal residence is flawed for the purposes of this Directive.
In conclusion, the Bargaining Agent representative argued that had the grievor been told and known up-front that all of this would be the result, the grievor could have simply returned to Newfoundland, for a day, a week, or a month after leaving the assignment, ensuring that they did not begin this new position until at least a few days later.
The Departmental representative began arguments by stating that the grievor is not entitled to reimbursement of this property sale expenses, as no relocation occurred when they accepted the position in Moncton. The grievor's principal residence was already located in Moncton at the time of deployment. The employee's original position was located in St. John's Newfoundland. The employee relocated to Moncton for the assignment and was reimbursed for legal and CMHC fees when purchasing the house in Dieppe, New Brunswick.
Section 8.3 of the Integrated Relocation Directive establishes the occupancy requirement by which entitlement to relocation is determined. The grievor's Income Tax returns for previous years indicate that their province of residence was New Brunswick – the principal residence for the purposes of the Integrated Relocation Directive was therefore not the home in St. John's.
In conclusion, the Departmental representative believed that the grievance should not succeed, as it does not fall within the intent of the Directive. In the alternative, should the grievance be found to have merit, the department objects to items (1) and (3) of the requested corrective action.
The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded that the grievor was not treated within the intent of the Relocation Directive.
Temporary relocation: assignment for two years from Newfoundland to Moncton/Dieppe:
- the grievor was entitled to relocation under article 1.4.2
- however, the grievor was reimbursed expenses for purchase of a home; which was not in compliance with the Directive.
Permanent relocation: permanent deployment Newfoundland to New Brunswick:
- the grievor was entitled to relocation from Newfoundland to New Brunswick and all applicable articles under the Directive;
- however, the grievor was not entitled to storage of personal effects while the house is under construction, as requested in the grievance, in accordance with article 9.6 of the Directive.
The grievor was entitled to relocation provisions under the Directive from Newfoundland to the newly constructed home in New Brunswick, as a result of the permanent deployment. Therefore, the grievance was upheld in part.