June 1, 1998
25.4.127
The employee grieved the denial of full spousal benefits under the FSDs in accordance with clause M.16 of his collective agreement, which protects the employee from discrimination on the basis of sexual orientation. The grievor sought FSD benefits that apply to employees for their spouses be applied and available to him, on December 1, 1995, he also sought the waiver of rent which he was charged for housing while on posting, for the period during which he was also paying accommodation costs of a residence in Canada.
When the grievor moved to his posting country in August 1995 for his three year assignment, his same-sex spouse remained in Ottawa for approximately a year and continued to live in their house. It was established that the grievor and his spouse had a 13 year old relationship. The grievor sought that all FSDs that apply to employees for their spouses be applied and available to him from the date of his posting confirmation. He also sought the waiver of rent which he was charged for housing during his posting while he was also paying accommodation costs of a residence in Canada.
The grievance was denied on the basis that the grievor was not given a short notice of posting, as well as on the basis that his same-sex spouse, who reached him in his posting country approximately a year later, continued to live in their jointly owned residence while the latter was being renovated.
The Bargaining Agent representative advised the Committee that in August 1995, the grievor began a three year posting at a Canadian Mission, in country X, while his same-sex spouse remained in Canada to complete renovations to their jointly owned home and to finish some professional commitments. The grievor's partner planned to join him in May of 1996. On July 27, 1995 when the grievor signed the agreement for his posting confirmation, he mentioned the name of his partner. The bargaining Agent stated that at that time, the grievor did not receive directives pertaining to same-sex couples. The grievor assumed that the Foreign Service Directives would apply spousal benefits to his situation as there were outstanding human rights cases against the department for FSD discrimination. CIDA expected changes in the months to come and would advise the grievor.
The grievor's first claim for rent share waiver in September 1995 was denied on the basis that he had no spouse and this violated the Foreign Service Directives. In November 1995, Treasury Board advised departments to treat same-sex couples the same as common-law couples. The grievor then renewed his claim for rent share waiver and once more, it was denied. The grievor grieved under article M-37.
On September 14, 1995 the grievor informed the Head of Mission that he was assuming monthly housing costs in Canada of approximately CAD $1,000 (mortgage, taxes and insurance), in addition to housing rent at the Post in country X. The grievor requested a temporary waiver of shelter costs at Post.
The Bargaining Agent advised the Committee members that the grievor obtained verbal information from a CIDA Senior Official that he would be reimbursed by CIDA. This Senior Official advised the grievor to pay the department the outstanding amount and requested that he provide CIDA with a proof of payment and bank details and that it would be taken up with the department. The grievor was advised by CIDA that it had decided in his favour. The grievor sent a cheque to the department and provided CIDA with all the necessary documents in order to have the promised reimbursement deposited. Shortly thereafter, he learned that the CIDA officer had left and it seemed that after his departure, officials in the department influenced CIDA to revoke the claim of rent waiver. The Bargaining Agent representative maintained that this meant that the grievor had given up all his leverage with the department and would continue to be charged for housing in his country of posting and accommodation costs for his residence in Canada.
In November 1995, the grievor was advised that his request was denied as article 25.09 did not apply because of the definition of the term "spouse". The grievor responded by referring to the guidelines for interpretation of FSD 25.09 and referred to two scenarios, one where a dependent has not joined the employee at the post and the other one which refers solely to an employee's financial situation.
The Bargaining Agent pursued his explanation by stating that the grievor's spouse had remained behind to fulfill a professional commitment and to complete renovations already begun prior to applying for posting that prevented the selling or renting of their property and that regardless of his spouse, the grievor was responsible for the mortgage payments, taxes and insurance costs. Deductions continued to be deducted monthly from his bank account. While accepting the posting the grievor claimed that FSD 25.09 (a) left no doubt in the grievor's mind as to his eligibility for a temporary shelter cost waiver.
The Bargaining Agent was of the opinion that the grievor has been financially penalized and burdened by the interpretation of the Directives as he has been obliged to pay shelter costs in country X, concurrently with costs in Ottawa. In August 1996, the department began threatening to garnishee the grievor's wages. They garnisheed his wages in October 1996. In addition, the grievor was responsible for a monthly mortgage payment in Canada. The grievor would have had $ 165.00 a month left for all expenses and rent for 2 persons. Following an appeal made by the Administration section at the Mission on behalf of the grievor, the department reduced the payment. In February and March 1997, the department began threatening to withhold travel advances for the grievor's work at the Post until repayment was made. In April 1997, the grievor was advised by CIDA to pay the department the full amount. The grievor claimed that if he had known prior to his departure that his request for a rental waiver would have been denied, he would not have accepted the posting.
On November 16, 1995 Treasury Board advised departments that some provisions made to the collective agreement would be granted to same-sex partners. Pursuant to Foreign Service Directives, an employee who is living in a same-sex couple relationship shall be granted the benefits to which an employee who is a common-law spouse is entitled. A same-sex couple relationship exists when, for a continuous period of at least one year, an employee has lived with a person of the same sex and publicly represented that person as his/her partner. The department identified the grievor's spouse as a dependent for purposes of FSDs and denied him benefits restricted to "spouse" (both married and common-law).
In November 1995, the grievor and his spouse signed an affidavit declaration 2.01 A 11 which contained the elements prescribed by Treasury Board. The declaration, which confirmed that the grievor and partner have had a 13 year partnership, was finalized on December 5, 1995 and forwarded to the department, accompanied by a covering letter of approval signed by the Head of the Mission.
The Bargaining Agent concluded that the grievor has been waiting over 28 months to resolve this situation. The grievor continues to be subject to controversy amongst the department heads, who keep disputing his FSD eligibility to claim a shelter allowance and same-sex couple benefits. In a letter dated January 24, 1996, the department stated that dependency was yet to be determined and would depend on when his partner would be ready to relocate and join the grievor. It was maintained that the grievor and his spouse would have continued to co-habit and would have remained together if the posting had not separated them.
It was maintained that the intent of rent share waiver for officers serving abroad is that they are not faced with harsh financial burdens in cases where the spouse continued to occupy the principal residence, due to professional or educational commitments.
The Bargaining Agent maintained that the grievor has been discriminated against in regard to his eligibility for benefits under the FSD 15.34 and 25.09. The Bargaining Agent is requesting that same-sex couple benefits be granted to the grievor under the provisions of the FSD as of November 16, 1995 and that he receive a rental waiver for 6 months allowable under the FSDs.
The Departmental representative from CIDA advised the committee that when the grievor signed his posting confirmation form on July 27, 1995 he clearly indicated that his dependent would be following him to the Post before May 1996. The grievor's partner left Canada on July 31, 1996 to join him.
In October 1995, the grievor requested full spousal benefits under the Foreign Service Directives, and more specifically shelter cost waiver. The grievor was seeking a rent waiver for a period of six months - September 1995 to March 1996 - for a total amount of $ 4,321.53. The Departmental representative advised that while CIDA understands the reasons which resulted in a double-rent situation, these reasons did not give CIDA the authority under the FSDs to waive the duty for the grievor to pay shelter charges at Post (FSD 25.08 a)b)c)).
The representative stated that the grievor's partner occupied their main residence for the period in question while he finished some professional commitments. Therefore, it is maintained the grievor's situation does not meet the requirements of FSD-25, Shelter, and more specifically section 25.09 a)b)c)d) for the following reasons: a) the grievor was not given a short notice of his posting (notification of posting on February 7, 1995); b) the grievor did not engage the services of a real estate or of a property management firm and; c) the grievor's partner continued to live in the residence after the grievor's departure on August 26, 1995 and to work in Canada for the period in question.
The Agency recognized the grievor's partner as a dependent as defined in FSD 2.01 (j) and (y) Interpretation. Given this, the guidelines of FSD 25.09 states that in situations where a dependent has not joined an employee at a post, the provisions of FSD 15.34, Family Separation Expenses should apply. the Agency does not find that FSD 15.34, FSE, applies to the grievor's situation, as his partner did join him at the post some 9 months into the posting. Had the grievor been directed to accept his posting on an unaccompanied basis and had the dependent not joined him during the duration of the posting, this FSD could have applied.
The Departmental representative summarized the presentation by maintaining that section 15.34 (a) (ii) paragraphs (A) to (G) could not be applied for the following additional reasons:
-CIDA did not direct the employee to accept the assignment on an unaccompanied basis;
-there was no disruption of a dependent's education or of a child of a dependent's education;
-the dependent was not ill and unable to relocate with the employee;
-the dependent remained in Canada to complete his work contract;
-the dependent did not remain in Canada for reasons of education and the employee did not accept the assignment on an unaccompanied basis.
For all the above, CIDA is of the opinion that the NJC should deny the grievance.
The Executive Committee considered and agreed with the Foreign Service Directives Committee report which concluded that the grievor was treated within the intent of the directive. The Executive Committee was satisfied that the grievor's partner was treated as a common-law spouse for purposes of the Directive and, therefore, that the issue of this grievance was not related to spousal status.
The grievance was denied.