Accommodation Deficiency Adjustment

The employee grieved that when she and her family were posted in location ‘X' and occupying Crown accommodation, the construction of a condominium began beside the compound in which they resided and immediately adjacent to their house. As a result of the construction, the employee, her husband, their children and their employee experienced serious disruptions of their right to quiet enjoyment. The grievor is requesting that she be granted an accommodation adjustment deficiency of a minimum of 25% plus interest for her shelter costs from June 1996 to August 27, 1997.

In August 1995 the grievor was posted to location ‘X' for a three-year posting. Her husband and two children ages six and three joined her at the posting. Around August 28, 1995, the grievor and her family moved into government accommodation. The accommodation was acceptable until June 1996, when construction of a condominium started next to the compound in which the grievor and her family resided and immediately adjacent to their living accommodation.

In June 1996 the grievor sent a memo to management requesting an adjustment to her rent of 25% as per the Accommodation Deficiency Adjustment (ADA) Directive. As the grievor received no written response to her memo, she subsequently sent a reminder to the Housing Committee on September 19, 1996, once again requesting ADA.

On January 16, 1997 the grievor sent a memo to the High Commissioner to request corrective measures and monitoring that had not taken place. She also inquired about her request for ADA. In February 1997, the High Commissioner verbally informed the grievor that her request for ADA was rejected. On August 27, 1997 the grievor wrote to DFAIT to request a temporary ADA of 20% for the period from June 1996 to the end of March 1997. The grievor was informed by DFAIT that the proper channel to go through was not the Committee on Accommodation Deficiencies but rather to file a grievance.

The Bargaining Agent representative stated that construction of the adjacent condominium continued almost around the clock, during days, evenings and weekends, at a great discomfort to the grievor and her family. The constant noise resulted in loss of sleep and inability of the grievor's spouse, who is a writer, to work at home.

The representative submitted the construction site contributed to dirt, dust and debris that the grievor felt was beyond the overall situation in location ‘X'. The construction site may not affect the grievor's neighbors equally but the unsanitary conditions of the environment open sewers, garbage disposal did create a risk of disease. Neighbours and the grievor's employee contacted "Dengue Fever".

Entering and leaving the premises were particularly dangerous as particles of waste were thrown regularly onto the front yard. Sleeping patterns were interrupted, as there was continuous noise for 24 hours at times seven days a week. The grievor's husband, a technical writer who worked out of the home, had difficulty concentrating. Workers could view all activities in the home, therefore, all curtains were drawn through out the day and night. When the grievor and her family left for vacation their employee felt that she needed to sneak in and out of the house for fear that the workers would know when the house was empty.

The representative further stated that open storm drains were five feet away from the grievor's accommodation and the workers quarters were built five feet from the grievor's fence. The workers used a side drain to discharge all kinds of waste including sanitary waste coming from the military camp, which was located at the back of the compound.

The main storm drain was overgrown with grass and debris. Spraying was recommended by the hospital and the visiting doctor of the High Commission as the drain had become breeding ground for mosquito. However, a year passed before the draining ditch was demolished. The vermin living in and around the ditch moved onto the grievor's property and were seen in the kitchen and bedrooms.

Once fumigation was completed no one in the home could breath properly for two days. The representative indicated the grievor was against fumigation, as the chemicals would make one of her children vomit. Nevertheless, sewage and industrial debris would not have been addressed by regular fumigation.

It was the grievor's understanding that a temporary ADA may be given if a construction site is immediately adjacent to the Staff Quarters unless this is a common local problem. This living arrangement was not a common local problem. The construction was immediately adjacent but the overflow in terms of waste as well as noise was on the grievor's property and escalating the situation beyond the norm.

In summation, the representative stated the above circumstances have interfered with the grievor's right to the quiet enjoyment of her accommodation due to ongoing concerns pertaining to noise, health and safety issues both inside and outside the grievor's accommodation. The grievor maintained that she should receive an accommodation adjustment deficiency of a minimum of 25% plus interest for her shelter costs from June 1996 to August 27, 1997.

The Departmental representative asked the committee to consider the question of whether or not the alleged inconvenience submitted by the grievor can give her access to the Accommodation Deficiency Adjustment (ADA).

The representative submitted that in order to ascertain a response to that question, one must first consider the hardship level of the mission. As with all others, when evaluating the mission at location ‘X' three main factors were taken into consideration. They include climate, environment and health.

According to the Foreign Service Directive (FSD 25 - Shelter) "the state shall provide each Canada-based employee outside Canada with accommodation which is generally comparable to the average fully-serviced accommodation normally occupied by a person of similar salary and family configuration in the Ottawa-Hull area." When considering an ADA, Appendix C of the FSD's states "good judgment must be exercised in determining whether any deficiency which is considered to exist renders the accommodation below Ottawa-Hull "standards" and, if so, to what extent livableness is reduced." The representative also submitted that an application for ADA implies that an employee is willing to move at any time.

In reply to the grievor's allegations of vermin, dust, dangerous waste and noise, the Departmental representative supplied the Committee with the following arguments. With regard to vermin it was noted that the grievor did not fumigate adequately, nor did she choose to use the air conditioning unit which increased the level of dust in the home.

The Departmental representative submitted that before the grievance was filed, the grievor was complaining about dirt and bad smells, however, when the grievance was filed, she then talked about exposure to dangerous waste. With regard to noise, the representative stated that construction related noise is not an extraordinary condition. It was noted that location ‘X' was in a period of economic growth at that time and construction occurred almost everywhere in the city.

This fact was corroborated by the Director for Canadian Cooperation Support who stated that construction was a common situation everywhere in location ‘X' at that time. Every employee located in this city lived with a high level of noise. The grievor's neighbour advised the Department that the noise level was at an acceptable level and that it was a common factor throughout that location.

In conclusion, the Departmental representative submitted that, based on testimonies of Canadian workers, living in location ‘X' in the same time span as the grievor, the noise wasn't at an excessive level, or didn't reduce the liveableness of the accommodation.

The fact that the construction employees were living on-site is part of local lifestyle. The Department maintains that the grievor is confused between what should be the hardship level and what is an Accommodation Deficiency Adjustment. Considering all the facts and testimonies, the Department could not agree that the grievor was suffering extraordinary bad living conditions that required any Accommodation Deficiency Adjustment.

The Executive Committee considered and agreed with the Foreign Service Directives Committee report which concluded that based on the evidence provided, the grievor had not been treated within the intent of Foreign Service Directives, in that an Accommodation Deficiency Allowance equivalent to 15% should have been authorized from June 21, 1996 to August 27, 1997, inclusively. With regard to the grievor's request for interest, the Committee agreed there was no authority under the FSD's to allow the payment of interest.

The grievance was upheld.