May 7, 2008
25.4.140
Background
The employee grieved the department's denial of living expenses in temporary accommodation on relocation from post to headquarters from July 30, 2005 to August 24, 2005 in accordance with FSD 15.33 and FSD 15.42.
Bargaining Agent Presentation
The bargaining agent alleged that managerial discretion, in accordance with FSD 15.42 should have been applied to authorize the payment of temporary living expenses, as these expenses were necessarily incurred through no fault of the grievor; he could not have anticipated the delays in shipment.
If the grievor's shipment had been delayed at the border because of his fault or negligence, FSD 15.33(a) Instruction 7 (b) would apply, as claimed by the department. However, the grievor had made the necessary arrangements for shipment and delivery of his household effects to coincide with his arrival at HQ, and these effects were not available due to circumstances beyond his control.
The bargaining agent declared that the grievor was not aware of and had not been informed by the department of the availability of pack-up kits and cots. He therefore received little guidance as to how to deal with his situation or that temporary accommodation expenses would not have been paid to him.
The grievor worked until July 22 and could reasonably have been contacted if there was an issue with his shipment; the allegation that the shipment was held at the border from July 27, pending receipt of a copy of the grievor's passport is not consistent with the department's reasoning. The grievor was not asked for this and all documentation was handled between the Mission and the movers. Also, this scenario does not explain how the shipment was eventually released as documents were never produced.
The bargaining agent stated the intent of FSD 15.33(a) Instruction 7(b) is to ensure that accommodation expenses not necessarily incurred as a result of the relocation are exempt from the entitlement. In the grievor's situation, temporary sleeping accommodation expenses were necessarily incurred as a result of relocation. Moreover, this part of the directive addresses situations where employees occupy Crown furnished housing. The grievor was posted in a location where he was required to ship his own furnishings; again, temporary accommodation was necessarily incurred as a result of the relocation to HQ because furnished permanent accommodation was not available on relocation.
The bargaining agent concluded by stating that clause 15.33 is inadequate and doesn't take into account the grievor's situation. FSD 15.42 should therefore apply in order for him to be treated within the intent of the FSD's.
Departmental Presentation
The departmental representative declared the grievor was in receipt of a waiver of shelter cost effective February 22, 2004, as his spouse was occupying the principal residence at HQ. Therefore as he has a principal residence, he was not entitled to receive temporary accommodation assistance under FSD 15.33.
The departmental representative stated the conditions of the household at HQ, which was claimed to be uninhabitable for the grievor was a personal decision taken by the spouse. The late arrival of the household effects was therefore irrelevant.
Furthermore, the departmental representative noted various deficiencies, one being that the grievor had not obtained prior approval of the temporary accommodation. Also, the grievor made no request for a pack-up kit and cot, which he should have been aware, was available to him, as this was provided in the general information email sent to him prior to posting.
The departmental representative concluded that there was no justification for the use of managerial discretion as per FSD 15.42 as the grievor was treated within the intent of FSD 15.33.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded that the grievor was treated within the intent of the Directive, specifically FSD 15.33. The shelter waiver served as evidence that the grievor had a principal residence occupied by his spouse which he could have occupied upon relocation regardless of whether his shipment was delayed. As such, the grievance was denied.