FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On April 29, 2009, Alexandre Roy (“the grievor”) filed a grievance against the Department of Foreign Affairs and International Trade (DFAIT or “the employer”) in which he alleged that the DFAIT violated the collective agreement between the Treasury Board and the Professional Association of Foreign Service Officers (PAFSO) (expiry date: June 30, 2011; “the collective agreement”) by denying him entitlement to certain allowances of the Foreign Service Directives (FSD), which are incorporated by reference into the collective agreement. In particular, the grievor alleged that he was entitled to and was wrongfully denied the payment of a post living allowance (FSD 55) and of foreign service incentive allowances (FSD 56) while working abroad on a short‑term assignment from November 10, 2008 to August 31, 2009.

2 DFAIT partially allowed the grievance at the second level of the grievance procedure by allowing the payment of foreign service incentive allowances (FSD 56), but maintained its denial of the post living allowance (FSD 55), relying on FSD 8.21.

3 For ease of reference, I have reproduced, as Appendix “A” to this decision, those sections of the FSD that I was referred to by the parties during the proceedings, which were in effect at the relevant time.

II. Summary of the evidence

4 The parties jointly submitted a book of 14 documents. They also submitted an agreed statement of facts, which reads as follows:

AGREED STATEMENT OF FACTS

1. Alexandre Roy (the grievor) is a substantive ES 5 with Human Resources and Social Development Canada (HRSDC). His wife, Melanie Levesque, is a career foreign service employee with the Department of Foreign Affairs and International Trade (DFAIT).

2. In January 2008, Melanie Levesque was posted to the Canadian Embassy in Tokyo, Japan as Deputy MCO. In order to accompany her on posting, the grievor took leave without pay from his home department (HRSDC) for spousal relocation effective January 9, 2008.

3. The grievor’s spouse was provided with her Posting Confirmation form that indicated that she would be accompanied by 3 dependants: the grievor and their 2 children.

4. In October 2008, DFAIT conducted a competition to staff a vacant FS 2 position (EXT 7420R) with a secondment/assignment which was limited to Canadian citizens with a secret security clearance and who were federal government civil servants on unpaid leave and resident in Tokyo.

5. The grievor was the successful candidate and a secondment agreement was signed between HRSDC and DFAIT. The grievor was paid as an ES 5 on a short-term assignment in Tokyo from November 10, 2008 to August 31, 2009.

6. The grievor paid dues to the Professional Association of Foreign Service Officers (PAFSO) because he was filling an FS position.

7. The grievor initially grieved the decision of DFAIT to deny him payment of Post Living Allowance (FSD 55) for the period of his assignment from November 10, 2008 to August 31, 2009 and Foreign Service Premium (FSD 56) for the period from April 01, 2009 to August 31, 2009.

8. At the second level of the grievance procedure, DFAIT agreed to pay Alexandre Roy Foreign Service Premium (FSD 56) for the period from April 01, 2009 to August 31, 2009 in accordance with FSD 8.17 of FSD 8 - Short-term assignments outside Canada of the 2009 Foreign Service Directives. At the same time, they denied payment of Post Living Allowance (FSD 55) in accordance with FSD 8.21.

9. At the final level of the grievance procedure, the NJC Executive Committee considered the report of the Foreign Service Directives Committee which concluded that the grievor had been treated within the intent of the Foreign Service Directives. The Executive Committee could not come to a consensus on the grievance. As such, the Executive Committee reached an impasse.

5 Although the grievor was not present at the hearing, his representative called one witness, Diane Buenger. The employer did not call any witnesses.

6 Ms. Buenger acted as the PAFSO’s authorized representative when the grievance was filed and when it was referred to adjudication. She also submitted written representations to the DFAIT at the second level of the grievance procedure. She indicated that, in addition to being familiar with the factual background of the grievance, she was also very familiar with the FSDs, having taken part in the discussion group that tabled them in 1969 and in many of the cyclical reviews that followed.

7 For the most part, Ms. Buenger took me through the key applicable provisions of the FSDs, which are found in Appendix “A”, and offered her views as to their intended meaning. It should be noted that Ms. Buenger was not introduced as an expert witness; nor was she qualified as one. Her testimony was not offered in the context of establishing extrinsic evidence; nor was it considered as such. Accordingly, from an evidentiary standpoint, I found her testimony of limited value.

8 In essence, Ms. Buenger submitted that, since the grievor’s circumstances were unique and were not contemplated by the FSDs, much regard needed to be given to its introductory paragraphs, particularly the following:

…

The Foreign Service Directives reflect the following principles:

(a) The principle of comparability recognizes that insofar as is possible and practicable employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada.

…

To achieve the objectives of the Directives, consideration will continue to be given to situations which may arise which are not specifically dealt with in the Directives but which fall within the intent of the Directives as described in the basic principles outlined above or explained in the Introduction to a specific directive.

…

9 Ms. Buenger indicated that she could not recall another situation in which one spouse of an employee-couple was on a normal posting and the other on a short-term assignment at the same time, which made the grievor’s circumstances unique and perfectly suited for those introductory paragraphs.

10 Ms. Buenger also suggested that by proceeding as it did, the DFAIT benefited from substantial financial savings. However, she provided me with no actual figures as to the amount of those savings.

11 Although Ms. Buenger drew my attention to the principle of comparability, referred to earlier, which states that an employee serving abroad should not be placed in a less favourable situation than he or she would be if serving in Canada, she provided no evidence demonstrating how the DFAIT’s actions placed the grievor in a less favourable position than he would have been had he served in Canada.

II. Summary of the arguments

A. For the grievor

12 The grievor argued that his entitlement for the post living allowance (FSD 55) was not dealt with by the employer in accordance with the spirit and intent of the FSDs.

13 According to the grievor, although the DFAIT’s decision to temporarily staff the FS-02 position through a short-term assignment and with a qualified candidate that was already living in Tokyo resulted in substantial financial savings for the DFAIT, it negatively impacted the grievor. He submitted that, had he been residing in Canada when he accepted the short-term assignment, he would have been entitled to a number of expenses, such as travel costs, meals, accommodations, etc.

14 The grievor contended that a provision of the secondment agreement confirmed that he would be entitled to the post living allowance (FSD 55). That provision reads as follows:

ROTATIONAL: It is agreed that HRSDC will advise the Assignments and Pool Management Division (HFP) of DFAIT of any changes to Alexandre Roy’s salary, as these occur, in order to ensure that Alexandre Roy will receive the necessary adjustments to his foreign service allowances which are governed by the employee’s salary.

15 The grievor submitted that the DFAIT’s denial of the post living allowance violated the principle of comparability of the FSDs, which provides that employees serving abroad should not be placed in a less favourable situation than they would be if serving in Canada. According to the grievor, that suggests that employers should exercise flexibility when fairness dictates that they should. The grievor suggested that he would have been entitled to the post living allowance had he been posted with his spouse on a long-term basis, but that it had been denied simply because he was posted on a short-term assignment. That is exactly the kind of unfair treatment that the FSD introductory provisions are designed to rectify.

16 According to the grievor, his situation, which consisted of an employee-couple posted abroad with one spouse being a career foreign service employee and the other being on short-term assignment, had not been contemplated by the FSDs, or critically reviewed. The grievor further contended that, contrary to the introductory provisions of the FSDs, no consideration had been given to his particular situation, which was not specifically dealt with in the FSDs, but fell within their intent.

17 The grievor urged me to read the words of the FSDs in their entire context and in their grammatical and ordinary sense, harmoniously with their scheme and object, and bearing in mind the intentions of the parties. On that point, the grievor relied on Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.

A. For the employer

18 The employer argued that the issue to be determined required nothing more than a simple reading of FSD 8.21 and FSD 3.04(b) and that the only conclusion that could be reached upon a plain reading of those provisions is that the grievor was not entitled to the post living allowance (FSD 55) during his secondment.

19 The employer submitted that my authority as an adjudicator was limited to interpreting and applying the FSDs, rather than attempting to modify the meaning of their terms and conditions, and that I ought not to ignore clearly worded provisions, even if the result might seem unfair. On that point, the employer referred me to Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, at para 50.

20 The employer also contended that specific FSDs, such as FSD 3.04(b) and FSD 8.21, should take precedence over more general FSDs or related text, such as an introductory provision. According to the employer, that point is reflected in FSD 3.02(b), which reads as follows:

3.02

(b) The substantive authority of the directives is contained in the sections of each directive. Where there appears to be a discrepancy between the provisions outlined in the introduction to a directive and the operative section of the directive, the latter shall govern. Instructions and guidelines are designed to clarify provisions.

21 The employer argued that, since the grievor was on a short-term assignment, he was subject to FSD 8, which provides that an entitlement to the post living allowance (FSD 55) is conditional upon an authorization to be accompanied by dependants, which the grievor did not and could not obtain, given that he was deemed unaccompanied by FSD 3.04(b). Those provisions read in part as follows:

…

8.21 Where dependant(s) are authorized to accompany an employee, assistance for dependant(s) shall be limited to:

…

(b) Post Living Allowance, in accordance with FSD 55 - Post living allowance, where the Post Index is above 100 …

…

3.04 The directives apply to each employee of an employee‑couple to the same extent as they do to an unaccompanied employee except:

…

(b) where the employee-couple are assigned to the same post, and a dependant resides with the employee-couple at the post, one employee shall be considered as unaccompanied and the other employee as accompanied at the appropriate dependant rate …

[Emphasis added]

22 According to the employer, the authorization referred to in FSD 8.21 simply does not apply to the circumstances of this case and was never sought.

23 The employer also submitted that no evidence placed before me suggested that the grievor had been in a less favourable situation than he would have been in had he been serving in Canada, or that the principle of comparability had been violated.

24 Finally, the employer submitted that the principle of comparability could not override an otherwise clear provision that excluded the grievor from benefiting from certain allowances. In support of its argument, the employer relied on paragraph 44 of Kramer v. Treasury Board (Department of Foreign Affairs and International Trade), 2010 PSLRB 116.

IV. Reasons

25 At issue in this decision is whether the grievor was entitled to the post living allowance (FSD 55). No outstanding issue was raised about the grievor’s entitlement to foreign service incentive allowances (FSD 56), as that issue seems to have been dealt with at the second level of the grievance procedure. I received no evidence or argument about that issue.

26 The fact that the grievor and his spouse met the definition of an employee‑couple under FSD 2 is undisputed. Also undisputed is the fact that he was on short‑term assignment and that FSD 8 applied to his situation.

27 A plain reading of FSD 3.04(b) and FSD 8.21 clearly establishes that the grievor was not entitled to FSD 55, that the applicable directives were not misapplied and that no violation of the collective agreement occurred. Since the grievor was deemed unaccompanied, by operation of FSD 3.04(b), he could not have benefited from the post living allowance referred to in FSD 8.21 because he did not meet its condition of being accompanied. As suggested by the employer’s representative, it is that simple.

28 I agree with the employer’s contention that, although FSD 8.21 refers to a possible authorization of an employee to be accompanied by dependants, it is of no consequence to the issue at hand. First, that provision is discretionary. Second, the grievor never sought such authorization before accepting the short-term assignment. Third, the dependants in question were already in Tokyo at the relevant time and were covered by the FSDs as a result of the grievor’s spouse’s status as a career foreign service employee.

29 The grievor claimed that, had he been residing in Canada when he accepted the short-term assignment, he would have been entitled to the payment of a number of expenses, such as travel costs, meals, accommodations, etc. But those facts are not before me. The grievor was not in Canada when he applied for and accepted the assignment. He was already residing in Tokyo as a dependant of his spouse, who was a career foreign service employee in receipt of FSD allowances for herself and her dependants. Whether or not that resulted in a saving of expenses for the DFAIT is inconsequential to the determination that I must make. In any event, no specific figures or amounts were referred to in the evidence to substantiate this allegation.

30 Similarly, other than a vague reference to a higher cost of living in Tokyo, I was not provided with any compelling evidence establishing how and to what extent the grievor was placed in a less favourable position than he otherwise would have been in had he been serving in Canada. The facts confirmed that the grievor went from a situation in which he was residing in Tokyo as a dependant on leave without pay to one in which he was, for nine months, remunerated at his ES-05 rate of pay and entitled to foreign service incentive allowances (FSD 56) while his spouse, with whom he resided, received FSD allowances. I simply cannot conclude with any degree of certainty, based on the evidence before me, that the grievor was placed in a less favourable position in light of all the circumstances that applied.

31 Even if I were convinced that the grievor was placed in a less favourable position, which I am not, this general concept would not trump the clear and unambiguous meaning of FSD 30.04(b) and 8.21, which exclude the grievor from an entitlement to a post living allowance.

32 I also cannot conclude that the secondment agreement confirmed that the grievor would receive the post living allowance. That contention cannot even be implied from the wording of the provision I was referred to. All that this provision does is ensure that his DFAIT salary is adjusted in conjunction with his HRDC salary and that the salary-based FSD allowances to which he is entitled are adjusted upward. It does not create entitlement; it only establishes an obligation of notification on the employer’s part to ensure that the grievor’s entitlements are adjusted upwards on the occurrence of certain events.

33 For all of the above reasons, I make the following order:

V.Order

34 The grievance is dismissed.

March 30, 2012.

Stephan J. Bertrand,
adjudicator

Appendix “A”

Introduction

The Foreign Service Directives are designed to provide a system of allowances, benefits and conditions of employment that, in combination with salary, will enable departments and agencies to recruit, retain and deploy qualified employees in support of government programs outside Canada.

The Foreign Service Directives are developed in consultation in the National Joint Council of the Public Service of Canada (NJC).

The Foreign Service Directives reflect the following principles:

1. The principle of comparability recognizes that insofar as is possible and practicable employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada.
2. The principle of incentive-inducement recognizes that the employer must provide certain additional emoluments both to attract employees to serve an occasional assignment outside Canada and to recruit and retain employees in a career foreign service.
3. Program-related provisions attempt to ensure that employees abroad will be provided with the means to carry out the programs assigned to them.

It is the responsibility of employees to familiarize themselves with the Foreign Service Directives and to seek clarification and/or assistance from their FSD administrator with respect to the application and/or interpretation of a specific directive, as needed.

To achieve the objectives of the Directives, consideration will continue to be given to situations which may arise which are not specifically dealt with in the Directives but which fall within the intent of the Directives as described in the basic principles outlined above or explained in the Introduction to a specific directive.

To ensure that terms and conditions of employment for employees serving abroad are kept up to date, the Directives are reviewed on a regular basis, normally every three years.

FSD 2

Interpretation

2.01 In these directives…

(o) Employee-couple (couple de fonctionnaires) means two individuals assigned to the same post, or to different posts, who are married to each other or who have signed the declaration in Appendix A to this directive where:

1. both individuals are employees; or
2. one individual is an employee and the other is eligible to claim foreign service entitlements from the Government of Canada (e.g., military personnel);

Specific application of the Foreign Service Directives to employee-couples is found in FSD 3 – Application.

(p) Foreign assignment employee (fonctionnaire affecté à l'étranger) means an employee who has made no commitment to serve abroad throughout the span of their career pursuant to a rotational pattern, but who serves an occasional assignment at a post, which is normally for a minimum of one year.

FSD 3

Application

Directive 3

3.01 Unless otherwise indicated, and subject to the provisions of FSD 8 - Short-term assignments outside Canada, these directives apply to career foreign service employees and to foreign assignment employees on assignment outside Canada, where:

(c) foreign assignment employees are employees who have made no commitment to serve abroad throughout the span of their careers pursuant to a rotational pattern, but who serve an occasional assignment at a post;

(d) an assignment means an assignment to an office of the Government of Canada at a post …

3.02

(b) The substantive authority of the directives is contained in the sections of each directive. Where there appears to be a discrepancy between the provisions outlined in the introduction to a directive and the operative section of the directive, the latter shall govern. Instructions and guidelines are designed to clarify provisions.

3.04 The directives apply to each employee of an employee-couple to the same extent as they do to an unaccompanied employee except:

(a) where the employee-couple are assigned to different posts, the directives shall apply to each employee, having regard for any accompanying dependant, or

(b) where the employee-couple are assigned to the same post, and a dependant resides with the employee-couple at the post, one employee shall be considered as unaccompanied and the other employee as accompanied at the appropriate dependant rate;

(c) where specific provisions in a particular directive dictate otherwise.

Directive 3

Appendix A

Short-term relocation outside Canada and the USA

The provisions of FSD 3 - Appendix A - Short-term relocation outside Canada and the USA, have been revised and incorporated into FSD 8 - Short-term assignments outside Canada.

FSD 8

Short-term assignments outside Canada

Introduction

To recognize varying living conditions outside Canada, special short-term assignment provisions have been developed for assignments of more than 30 consecutive days but less than one year, when the employee normally accepts the assignment on an unaccompanied basis, when the Foreign Service Directives do not apply, as outlined in this directive.

Directive 8

8.03 These provisions shall apply to assignments commencing April 1, 2009, where,

(b) employees on assignment outside Canada on April 1, 2009, under the provisions of Appendix A to FSD 3 - Short-term relocation outside Canada and the USA, shall come under the provisions of this directive.

Foreign Service Premium

8.17 Where the assignment is in excess of 120 consecutive days, including any extension, the deputy head shall authorize payment of the Foreign Service Premium and the accrual of foreign service premium points in accordance with FSD 56 - Foreign service incentive allowances (Foreign Service Premium).

Employee Accompanied by Dependant(s)

8.20

(a) In rare and unusual cases, the deputy head may authorize the employee's spouse (or common-law partner) and any dependant(s) normally residing with the employee to accompany the employee, subject to proof of health insurance coverage.

8.21 Where dependant(s) are authorized to accompany an employee, assistance for dependant(s) shall be limited to:

(b) Post Living Allowance, in accordance with FSD 55 - Post living allowance, where the Post Index is above 100; and

(c) Post Differential Allowance (FSD 58) and Foreign Service Premium (FSD 56) at the unaccompanied rate …

FSD 55

Post living allowance

Introduction

To assist employees at missions where the cost of living is higher than in Ottawa/Gatineau, the employer provides a non-accountable allowance to compensate for the higher costs of purchasing goods and services at post.

FSD 56

Foreign service incentive allowances

Introduction

Foreign service incentive allowances consist of two tax-free allowances provided as incentives to foreign service.

The foreign service premium is provided as an incentive to foreign service and as such recognizes that there are disutilities and disincentives, some of which may be financial, resulting from service outside Canada. The premium varies according to the employee's family size and service outside Canada and is payable to employees to whom the Foreign Service Directives apply in accordance with FSD 3 - Application and FSD 8 - Short-term assignments outside Canada.

The post specific allowance is a non-accountable travel allowance designed to assist employees in travelling from post and reflects 80% of return full (Y) economy air fare between the employee's post and the headquarters city or where a Y fare is not available for a specific post, 100% of the Y2 fare. This allowance is only available when an employee is not subject to the provisions of FSD 46 - Post leave/option.

Directive 56

56.01 Unless otherwise indicated, this directive applies to career foreign service employees and to foreign assignment employees.

Instruction

The provisions of Section 56.01 also apply to employees on assignment in accordance with FSD 8 - Short-term assignments outside Canada.