May 1, 2019
27.4.126
Background
The grievor works in City A, Province Y. City A is designated as an isolated post under the NJC Isolated Posts and Government Housing (IPGH) Directive. In April 2015, the grievor submitted a claim in order to receive the IPGH Fixed Rate Vacation Travel Assistance (VTA) for the 2015/2016 fiscal year. In accordance with the VTA effective April 2015, the grievor’s claim included themself, their spouse and their two children at the rate of $2,518 per person. On November 12, 2015, they adopted a baby. Then, the grievor submitted another claim of $2,518 to receive VTA for this new dependant for the complete 2015/2016 fiscal year. Regional Finance prorated the amount of the VTA for the new dependant as the adoption occurred in November 2015. Therefore, the claim was denied for the period of April 2015 to November 2015. This resulted in a decrease of $1,554.80 being paid for the grievor. On February 11, 2016, the employee grieved the fact that the Employer prorated the VTA.
Grievance
The grievor is grieving that the Employer has pro-rated the Vacation Travel Assistance payment for their child, which is contrary to Section 3.5 Fixed Rate Vacation Travel Assistance of the NJC Isolated Posts and Government Housing Directive.
Bargaining Agent Presentation
The Bargaining Agent representative is of the opinion that the grievor was not treated within the intent of the Directive. The representative noted that it is very expensive to travel when living in an isolated post and that the intent of the Directive is to compensate for those exorbitant costs. The Bargaining Agent representative contended that the travel cost is the same for a child adopted/born part way through the fiscal year (i.e. the cost of travel does not change whether the child is two months old or nine months old).
The Bargaining Agent representative highlighted the fact that the Directive is specific in scenarios such as the recovery of VTA should an employee leave an isolated post and with respect to prorating VTA in cases of seasonal and part-time employees; however, it is silent with respect to the amount to be paid to an employee arriving at an isolated post with an EA of 1, 2, or 3 (which is the situation in this case) other than stating that the employee cannot apply for the VTA payment until they have been in the isolated post for three months. Furthermore, there is no provision under the IPGH Directive for prorating VTA with respect to children adopted/born during the fiscal year. The argument was put forth that if the parties intended that there be prorating of the VTA in this case, they would have been specific just as they were in the scenarios noted above
The Bargaining Agent representative also relied on various jurisprudence from the FPSLREB including specific jurisprudence stating that collective agreements are clear and unambiguous and that adding a term was prohibited. The Bargaining Agent representative is of the opinion that adding the term “prorated” to the application of VTA where it does not exist would change the intent of the Directive. As such, the representative requested that the grievance be upheld.
Departmental Presentation
The Departmental representative is of the opinion that the grievor was treated within the intent of the Directive. The Departmental representative relied on the definition of “Dependant” which means a person … who resides with the employee at the employee’s headquarters residence and is … a biological child, step child, adopted child, or legal ward.
For the purposes of Fixed Rate Vacation Travel Assistance, the rate is payable to the employee, for the employee and for each dependant. The Departmental representative contends that the adopted child did not qualify as a dependant until such time the child resided with the grievor in November 2015 and hence, did not qualify for the VTA prior to this date.
The Departmental representative further contended that although the Directive does not specifically outline that the VTA should be prorated, in instances such as this, the intent is not for employees to profit from an annual benefit, as entitlements under the Directive are only paid out once the employee qualifies. The intent is not to open the way for personal gain. The Departmental representative supported this argument by citing NJC jurisprudence where the VTA was pro-rated for part-time employees. As such, it was reasonable to prorate the VTA in the case at hand. Given this, the Departmental representative requested that the grievance be denied.
Executive Committee Decision
The Executive Committee reviewed the report of the Isolated Posts and Government Housing (IPGH) Committee and noted that the IPGH Committee could not come to an agreement on whether the grievor was treated within the intent of the Directive. The Executive Committee considered the report of the Isolated Posts and Government Housing Committee and determined that, in this particular instance, the entitlement to benefits under this provision began from the time that the dependant actually resided with the employee at the post. Given that the dependant began residing with the employee at the post in November, Vacation Travel Assistance should commence from this date. As such the grievor was treated within the intent of the Directive and the grievance is denied.