March 24, 2021
41.4.138
Background
The grievor was deployed without consent to Location A effective February 17, 2018. The grievor signed the deployment letter on February 5, 2018 and signed the relocation attestation letter on March 16, 2018.
The grievor’s home at origin, located in City F, Province M, was listed at $889,000 on April 13, 2018. On May 31, 2018, the grievor’s home appraisal was received and was appraised for $885,000. On December 4, 2018, the grievor’s marketing incentive was utilized in the amount of $4,000. An independent appraisal was received for $765,000 on December 10, 2018. The grievor accepted an offer on their home on January 10, 2019 for $755,000 with a closing date for March 21, 2019.
The grievor submitted five (5) house hunting trip (HHT) claims for $170.88 each, which were approved on January 24, 2019. On April 4, 2019, the grievor’s relocation file was extended for two (2) months. Following this extension, an interim lodging advance was approved for $624.00. On April 9, 2019, the grievor purchased a house at destination, located in City G, Province M, for $655,000 with a possession date for April 11, 2019. The grievor’s claim for their final move was approved on July 5, 2019, for $697.99.
The distance between the grievor’s home at origin and Location A was 59.1 km, and the distance between their home at destination and Location A is 34.5 km. Therefore, the grievor moved 24.6 km closer to their workplace.
On February 6, 2020, the grievor received a letter from the Brookfield Global Relocation Services (BGRS). The letter stated that the grievor has an outstanding debt to Canada in the amount of $64,846.52[1], the total claims that had been reimbursed, which must be paid via BGRS thirty (30) days following receipt of this letter. It was further mentioned that the details of the overpayment related to the Relocation Directive, subsection 1.4.5, 40 km rule – non-eligible relocation distance.
On February 19, 2020, the grievor received a letter from the Department with respect to the shipment of the grievor’s household goods and effects (HG&E) and was requested to repay $5,048.63[2] by March 20, 2020. The grievance was submitted on March 12, 2020.
[1] Upon review of the Brookfield Notepad, this figure represents all relocation related expenses except CRS moving.
[2] Upon review of the Brookfield Notepad, this figure represents the CRS moving expenses.
Grievance
The employee is grieving the decision of the Employer to request reimbursement of paid relocation expenses in relation to their employer-requested relocation to Location A, more than a year ago. The employee is grieving that the Employer’s actions are not only contrary to the NJC directive, the collective agreement, but also that the Employer is estopped from taking such position.
Bargaining Agent Presentation
The Bargaining Agent Representative argued that the Employer’s decision to retroactively withdraw its authorization of relocation assistance does not respect the intent of the NJC Relocation Directive. They clarified that the authorization was communicated twice, in February and April 2018 and that the subsequent reversal goes against the principles of Valuing People, Transparency, Respect, Flexibility and Trust.
The representative contended that approval of relocation assistance in cases where employees relocate less than 40 km closer to their new work location is permissible under the Directive. Specifically, they referenced the clear and ordinary use of the word “normally”, asserting that there may be circumstances under which relocation could be provided even if the 40 km rule was not met. They further argued that subsection 1.4.5 does not state the benefits cannot be paid, only that they may be taxable.
Referencing the Employer’s stated reason for denying the assistance, that the grievor failed to obtain prior authorization, the representative argued that the Employer failed to properly provide pre-authorization and that the Directive was misinterpreted to inappropriately deny the benefit. They also contend that the grievor should be restored to the position they would have been in were it not for the Employer’s misinterpretation, being that the grievor should receive the relocation assistance.
In support of the grievor’s position, the representative referenced NJC Decision 41.4.99, where the grievor’s earlier relocation was authorized due to a misinterpretation of terms by the Department, expenses were reimbursed, and then the grievor was subsequently informed that the relocation was not authorized in advance and the Department was therefore seeking reimbursement of the expenses. The Executive Committee upheld the grievance.
The representative asserted that once the Employer’s representative authorized the relocation in writing, it was bound by that authorization. Based upon the preceding, the representative asked that the grievance be upheld.
Departmental Presentation
The Employer representative argued that the grievor failed to abide by the Relocation Attestation form which they had signed, specifically that they did not obtain written approval from the Departmental National Coordinator prior to acquiring their new residence and failed to inform the Department and Brookfield that their new residence was not at least 40 km closer to their new work location.
The representative insisted that, while the grievor had provided the new address to all parties, it was incumbent on the grievor to indicate that it was less than 40 km closer to the new work location than their previous address. They argued that by signing the attestation, the grievor was aware of the requirement, and the parties relied on the grievor to indicate if they had not met that requirement. As they did not proactively disclose the information, it was eventually discovered by the Employer when closing the file, and therefore the Employer appropriately sought the recovery of funds paid.
The representative referenced previous NJC decision 41.4.95, citing the rationale for denying the relocation entitlement including that the residence of origin was within 40 km of the new workplace and therefore it was physically impossible for that grievor to meet the requirements of subsection 1.4.5. The representative further referenced NJC decision 41.4.51 where the decision indicated that the Employer is legally obligated to recover the overpayment in accordance with the Financial Administration Act.
The representative concluded that the grievor was treated within the intent of subsection 1.4.5 of the Relocation Directive and requests that the grievance be denied.
Executive Committee Decision
The Executive Committee considered the report of the Relocation Committee which concluded that the grievor had not been treated within the intent of the Relocation Directive as the Department authorized the relocation and did not withdraw the authorization prior to disbursing the funds. It was noted that the Directive does not allow for the addition of conditions to the requirements for authorizing relocation. As such, the grievance was upheld.
With respect to the determination whether the relocation benefits will count as a taxable income, this is at the discretion of the Canada Revenue Agency.