Seeley v. Canadian National Railway

Seeley v. Canadian National Railway
Collection
Canadian Human Rights Tribunal
Date
2010-09-29
Neutral citation
2010 CHRT 23
File number(s)
T1355/8508
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
DENISE SEELEY
Complainant
- and - CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and - CANADIAN NATIONAL RAILWAY
Respondent
DECISION
2010 CHRT 23 2010/09/29
MEMBER: Michel Doucet
I. INTRODUCTION
A. THE FACTS
(i) The Canadian National Railway
a) General information
b) Running trades employees
c) The changes made in 1992 and the creation of the furlough boards
(ii) The Complainant's work history
(iii) The Vancouver shortage
(iv) The Conductors recalled to cover the Vancouver shortage
(v) The Complainant's recall to work
B. ISSUES
C. THE LAW AND THEORY OF THE CASE
(i) The relevant provisions of the CHRA
(ii) The Law
a) The prima facie case
b) What approach is to be applied to determine whether there has been discrimination on the ground of family status?
c) Has a prima facie case of discrimination on the basis of family status been made out?
d) Did CN provide accommodation to the Complainant?
e) Conclusion
D. REMEDIES
(i) An Order that CN Review its Accommodation Policy
(ii) Reinstatement
(iii) Compensation for lost earnings
(iv) Pain and suffering
(v) Wilful or Reckless Conduct
(vi) Costs and Interest.
I. Introduction [1] This is an employment discrimination case on the basis of sections 7 and 10 of the Canadian Human Rights Act (the CHRA). Denise Seeley (the Complainant) filed a complaint alleging that the Respondent, the Canadian National Railway (CN) has discriminated against her on the basis of her family status by failing to accommodate her and by terminating her employment.
[2] CN denies the complainant's allegations.
[3] All the parties, including the Canadian Human Rights Commission (CHRC), were present at the hearing and were represented by counsel.
[4] There are two other related complaints against CN. By agreement of the parties, these two other matters were treated in a separate hearing and will be decided separately. Although the facts in the present case and in those two other cases are very similar and that the witnesses for CN were the same, except for one who did not testify in this case, the evidence is, in many regards, different. The witnesses of CN, who testified in this case, did not, without necessarily contradicting themselves, repeat exactly the same evidence in the two other cases. Also, documents which were disclosed in this hearing were not filed as evidence in those two other cases. These differences will explain any discrepancies that may exist in the facts when they are compared.
A. The Facts (i) The Canadian National Railway a) General information [5] CN is a federally regulated corporation which derives its revenues from the transportation of goods by train. It is a transcontinental railway company which operates in Canada and in the United States. Its freight trains transport goods 24 hours a day, 7 days a week, 365 days a year.
[6] CN employs more than 15,000 employees in Canada. Employees are organised in two groups described as operating and non-operating. The non-operating group is comprised of employees working in clerical, mechanical and engineering positions. The operating group employees are also known as running trades employees and consist of Conductors and locomotive engineers. CN has over 4,000 running trades employees throughout Canada of which 2,400 are Conductors.
[7] The Crew Management Centre (CMC) in Edmonton is a very important part of CN operations. CMC is responsible for all the crew calling and deployment for the Western region. They manage the workforce for running trades and also manage a payroll of 204 million dollars. Elaine Storms is the Director of CMC. She occupied this position in 2005.
b) Running trades employees [8] As stated earlier, locomotive engineers and Conductors form part of what is identified as the running trades' employees. Locomotive engineers operate the engine and Conductors are basically in charge of all the other aspects pertaining to the movement of a train.
[9] Running trades employees either work road or yard. Road work consists of employees who will get on a train at a particular terminal and take the train to another terminal. They will then layover at the away terminal and come back to their home terminal later. A yard employee would typically work in the yard, switching box cars and making up trains. The yard employee does not leave the terminal.
[10] In terms of hiring, CN tends to hire its running trades employees in large group. CN did significant hiring in the seventies, a spattering in the eighties; then again it did significant hiring in the nineties and also during the last couple of years.
[11] Ms. Ziemer, a Human Resources Officer from Vancouver, testified that in 1996 the percentage of women in the running trades was about 3%. This figure was 3.7% in 2006 and is now around 3.1%. She added that men predominantly showed more interest for running trades jobs.
[12] She also explained that the cost of hiring and training a Conductor would be in the vicinity of 18,000 to 20,000$, per Conductor. The training takes from three (3) to six (6) months. The cost of training a locomotive engineer is between 28,000$ to 30,000$, in addition to what it cost to train him or her as a Conductor.
[13] In order to be qualified to work as a Conductor, an employee must have his rules and medical cards up to date. These cards have to be updated every three years. If the employee is on the working board, he or she will generally get a notice that tells him or her that his cards are about to expire and then he just needs to make the proper arrangements to bring them up to date. If the employee is on lay off, he will need to take care of this by himself.
[14] Due to the nature of CN's operation, running trades employees must be able to work where and when required, subject to restrictions imposed by law and the collective agreement. In light of these considerations, CN feels that mobility and flexibility constitutes basic job requirements for running trades employees. It considers these requirements as necessary because of the volume of goods it transports and because of the fluctuation in traffic which can occur over a short time period of time due, for example, to changes in the economy or to seasonal factors such as the grain harvest season.
[15] When an employee is working or available to work, he is said to be on the working board. The working board includes all employees who are not on lay off. Employees on the working board are either on assignments or in apool.
[16] An employee who is on the working board can also be said to have been set up. The decision to set up an employee is made following discussions between managers at the terminal where the employees are supposed to be set up and the union. The decision is based on the numbers of employees needed to perform the work that is expected.
[17] There is also another board, which forms part of the working board, but which is designated as the spare board or emergency board. Employees on this board will only be called to work to fill in when other employees are either on vacation or unavailable to work for any other reasons.
[18] Running trades employees work on a mileage basis. The working board is adjusted on weekly basis so that each employee can do approximately 4,300 miles a month. When doing the adjustment of the working board, CN will look at the previous week to see how many miles were made by the employees. They will divide this number by 4,300 and the result will indicate the number of employees that would potentially be needed for the following week.
[19] At all relevant times to this matter, Conductors in the Western Region of Canada were represented by the United Transportation Union (UTU). The Western Region includes all of CN's rail terminals from Vancouver, British Columbia, to Thunder Bay, Ontario. The applicable collective agreement for Conductors in the Western Region is Agreement 4.3 (the Collective Agreement).
c) The changes made in 1992 and the creation of the furlough boards [20] In 1992, technological changes allowed CN to do away with the car at the tail end of the train, which is more commonly known as the caboose. This decision prompted the elimination of the position of brakeman. After this decision, Conductors, who used to work in the caboose, were moved up to the front of the train with the locomotive engineer. Eliminating the position of brakemen meant that CN needed less running trades' employees to run its trains. The reduction in the number of employees was done through the negotiation process with the Union. The negotiation resulted in the creation of the furlough boards.
[21] A furlough board comes into existence when there is a surplus of employees, but not enough work for everyone. The furlough board will then guarantee the employee's earnings up to the 4,300 miles provided for in the Collective Agreement whether he or she works or not. The employee on the furlough board has to remain available for work, but if he or she isn't called to go to work, he or she still gets paid his or her salary.
[22] The changes made to the working conditions in 1992, also created the notion of forcing, which produces different results for different categories of employees in the running trades. According to section 148.11 of the Collective Agreement, employees hired subsequent to June 29th, 1990, can be forced to cover work at another terminal in the Western region and are obligated to report at that terminal within, at most thirty (30) days unless they present a satisfactory reason justifying their failure to do so. These employees are commonly referred to as category D employees. They are also referred to as non-protected employees, insofar as they are obligated to respond to a recall outside of their terminal.
[23] Other categories of employees include those who were hired prior to June 29, 1990. These are referred to as protected employees. In this group of protected employees we have those who were hired prior to 1982 and who are referred to as Category A and Category B employees, respectively. These employees cannot be assigned for work outside of their local terminals. Employees hired after 1982 but prior to June 29, 1990, are referred to as Category C employees and may only be assigned to protect work at adjacent terminals. For example, Category C employees at the Jasper terminal could only be assigned to the adjacent terminals of Edson and Kamloops.
[24] The status of protected employees represents an exception to the general rule. The number of these employees will diminish over time through simple attrition and the status will eventually disappear altogether. The protected employees also have the benefit of the furlough boards. Non-protected employees are not entitled to the furlough board.
[25] With the creation of the furlough boards, which in essence allowed some employees to be protected at their home terminal, CN needed to find a way to fill positions in cases of shortages at other locations. This is where section 148.11 of the Collective Agreement came into being. This provision, as we have just seen, allows CN to force unprotected employees to other terminals in the Western region to cover work.
[26] Prior to the enactment of section 148.11, CN would get employees to cover shortages by issuing what is referred to as a shortage bulletins and allowing employees to bid on these shortages, if they so desired. These bulletins were put out at each change of card which would happen about four times a year. Since it is difficult for CN to predict where a shortage will occur, these bulletins would cover various locations, whether or not there was actually a shortage there. Employees who wished to work at a shortage at a certain location would post a bid for that location and if that location ever became short, the employee who had posted a bid could be called to cover the work there.
[27] CN still puts out shortage bulletins and employees are still allowed to bid on these, but given that protected employees can now stay at their home terminal on the furlough board and still be paid, there is little incentive for them to bid on these potential shortages.
[28] CN also used a system which is referred to as the whitemanning which allows it to send a surplus of employees at one terminal to an adjacent terminal. For example, in such a scenario employees in Kamloops, B.C., would be running trains that the Vancouver crews would normally take to Kamloops.
[29] It is also possible that manager will be called upon during a shortage situation. Almost all of the transportation managers are qualified to operate trains. CN will call upon its managers as a last resort after it has exhausted its supply of running trades employees.
[30] Employees who are assigned to another terminal pursuant to section 148.11 of the Collective Agreement are afforded with certain amenities at their assigned terminal. These include, when available, rooms equipped with kitchenettes and also the possibility of travelling back to their home residence at regular intervals or, alternatively, having CN cover the cost associated with bringing a family member to the shortage location.
[31] According to subsection 148.11(f) of the Collective Agreement, the first employee called upon to protect work will be the junior qualified employee on lay off in the seniority territory with a seniority date subsequent to June 29, 1990. The collective agreement does not provide for a maximum duration for covering work. If the shortage turns out to be permanent, then CN will proceed to hire people for that location.
[32] Section 115 of the Collective Agreement provides that an employee who is laid off will be given preference for re-employment when staff is increased in his seniority district and will be returned to service in order of seniority. The provision also provides that if the employee is employed elsewhere at the time of recall, he may be allowed thirty (30) days in which to report. If he fails to report for duty or if he fails to give satisfactory reason for not doing so, within fifteen (15) days of the recall, he will forfeit all his seniority rights.
[33] An employee, who would wish to raise a satisfactory reason to justify his or her failure to report for work, would first have to make a request to the Crew Management Centre (CMC). He or she would then be instructed to write a letter to his or her immediate supervisor at his home terminal. If the reason raised could have an impact on the Collective Agreement some discussions with the union might be necessary.
(ii) The Complainant's work history [34] The Complainant was hired by CN as a brakeman on July 2nd, 1991 and she qualified as a freight train Conductor in 1993. Her home terminal was Jasper, Alberta. The Complainant and her husband lived in Jasper until the birth of their first child in 1999. They then moved to Brule, Alberta, a small community located at about ninety-eight (98) kilometres from Jasper. She was an employee of CN until her employment was terminated, in 2005, for refusing to cover the shortage in Vancouver.
[35] Her husband is also employed by CN as a locomotive engineer with currently 32 years of service.
[36] The Complainant worked as a Conductor from 1991 to 1997. In 1997, she was laid off, as were many other employees of CN. She remained on layoff from November 1997 until February 2005. However, her employment relationship with CN was maintained throughout her layoff period. The Collective Agreement provides that an employee on lay off will continue to accumulate seniority. It further provides that he or she can stay on lay off indefinitively or until he or she is recalled or resigns.
[37] Between 1997 and 2001, the Complainant had performed some work for CN on emergency calls. More precisely, she worked twenty-five (25) tours of emergency calls between 1997 and 2000. In 2001, she worked four (4) more tours. She did not work from thereon.
[38] In January 1999, the couple's first child was born. The second one was born in 2003. Following the birth of her first child, the Complainant still did some emergency work on a few occasions, in Jasper, but the calls being unpredictable, this made it difficult for her to make the necessary child care arrangements. After the birth of her second child, the Complainant did not do any emergency work for CN.
(iii) The Vancouver shortage [39] In February 2005, CN was experiencing a severe shortage of running trades employees in its Vancouver terminal. This situation was mainly due to a growing economy and an increase in CN's business volume which had outpaced its capacity to provide running trades employees locally. According to Ms. Storms seventy two (72) Conductors were needed in Vancouver to cover the shortage and Vancouver had only fifty three (53) Conductors working. She added that it was definitively one of the most serious shortages that I had seen in my career.
[40] Due to its location, the Vancouver terminal is a very active one. It includes extensive yard and intermodal operations where goods are transferred from and onto ships. The Vancouver terminal therefore constitutes a focal point for CN's Canadian market as vast amounts of materials and consumer goods shipped to and from Asia and North America transits through it and are afterwards transported throughout Canada on CN's rail network.
[41] A shortage of running trades employees in Vancouver carries significant implications, as it can affect CN's ability to operate adequately throughout its network.
[42] In order to maintain its level of operation, CN decided in February 2005 to recall laid off Conductors from the Western region to protect the shortage affecting the Vancouver terminal. These employees were non-protected employees with a seniority date subsequent to June 29, 1990. As such, they were subject to Article 148.11(c) of the Collective Agreement.
[43] Ms. Storms also testified that during that period she went to Vancouver to help with the deployment of officers. She added that officers had been called in from all over Canada to help with the shortage.
[44] In terms of how long this shortage might last, Mr. Joe Torchia, the Director of Labour Relation for CN, indicated that it might have been possible to give an estimate, but that they would be reluctant to do so because then people tend to hold you to it. He agreed that the uncertainty regarding the length of the shortage could have an impact on what housing arrangements CN might be willing to agree too. Ms. Storms was more precise and indicated that if the Complainant had reported to Vancouver, she would have probably stayed there for approximately a year, since the shortage situation in Vancouver was not resolved before 2006.
[45] Employees reporting to cover the shortage at the Vancouver terminal, would be asked to show up at the Thornton Yard, in Surrey, and from there, since Vancouver has a number of yards, they would be taxied to wherever they were needed. Employees would only be informed when they got to Vancouver where they were going to work and what shift they would be working on.
(iv) The Conductors recalled to cover the Vancouver shortage [46] Forty-seven (47) laid off Conductors were recalled to cover the Vancouver shortage in February 2005. Ms. Storms explained that, in accordance with the Collective Agreement, employees are recalled on a seniority basis, starting with the senior person in the district. She added that CN would not allow a senior employee to bypass an opportunity to work, because that would mean that they were not protecting their seniority. At the time of the recall, the Complainant was third out of four on the seniority list of laid off employees at the Jasper terminal.
[47] The forty-seven (47) employees were initially contacted by phone. Again according to Ms. Storms, when these employees were called they were told that they had fifteen (15) days to report to cover the shortage.
[48] CN produced at the hearing a document providing part of the work history for some of these employees. Ms. Storms explained that this document was a result of information entered into the system by crew dispatchers at CMC. She was extensively cross-examined in regards to this document by the Complainant's counsel and by counsel for the CHRC. We will go over this document in some detail in the following paragraphs, as it was apparent that this information was important for all the parties. In order to protect the privacy of these employees, they will be identified by letters which do not correspond to their names.
[49] The employee identified by the letters AB, although recalled did not report to the Vancouver shortage. On March 22th, 2005, he was set up at the Sioux Lookout terminal. He continued to work there to the end of the year. Having been set up at his home terminal, he did not have to cover the shortage in Vancouver. Although this employee was set up on March 22nd, he only worked on March 24th and then he did not work again until April 1st. After this date he works again on April 10th and 11th, but doesn't work until April 18th. On July 22, he takes a personal leave and doesn't return to work until August 12th. He works from that date to August 20th, but does not work gain before September 22nd. He works again on September 30th and then does not work until October 28th.
[50] Employee HI was working on a shortage at Hornepayne at the time of the recall. He worked on that shortage up until May 18th, 2005. After that he went home for a week and then went to Vancouver to cover the shortage on May 30th. He was later recalled to his home terminal on September 19th 2005. He took a transfer to Fort Francis on October 29th and worked there until the end of the year.
[51] According to the documents produced by CN, while he was in Vancouver, this employee started off by doing four (4) shifts of training. After he had completed his training on June 3rd, he only starts working on June 9th, six days later. Ms. Storms specified that it could well be that during that time he was still in training, although she did not know for sure. After June 9th, he is shown as available from June 17th to June 26th and then he is off work for miles. That means that he had been at the shortage location for a specified amount of time and he could go home for a few days. He did not work in Vancouver from June 16th to July 6th. From July 23rd to August 8th he also did not work. Then he has another break on September 1st and his next working date is September 25th. On October 29th, as I've stated earlier, he is set up in Fort-Francis, but does not actually work there before December 22nd, 2005. When asked by the Complainant's counsel why an employee would be set up for almost two months and not work, Ms. Storms replied: I can't answer that.
[52] Employee P was laid off at North Battleford on February 25th. On March 19th he took a week's vacation and then he was set up at his home terminal on March 26th. As already mentioned, when an employee is set up, he or she is no longer under an obligation to cover a shortage. Ms. Storms did emphasize though that being set up does not mean that the employee is working every day. In the case of employee P, for example, from March 26th to the end of April, he only worked 7 days at his home terminal, but Ms Storms added that we must be careful when looking at this information as those tours can last two (2) or three (3) days each, although no evidence confirming that this was the case was submitted. The employee was again laid off again on April 24th, 2005. From that date to the rest of the year, employee P moved around within the Saskatchewan zone taking a clearance at other terminals.
[53] The expression taking a clearance refers to the situation where a laid off employee with seniority in the Western region elects to go to another terminal where a position he can hold is available. When a position becomes available at his home terminal, the employee will return there. If an employee is exercising his seniority and takes a clearance, he or she is said to be working and will not have to report to cover a shortage. According to Ms. Storms, this would have been an option for the Complainant. In order to do that, Ms Storms explained that the Complainant would have had to call CMC and inquire where she could take a clearance.
[54] Employee Y was also called to protect the shortage in Vancouver on February 25th, 2005. On that day he was on a leave of absence, but according to Ms. Storms, CMC would have contacted him within the next few days. Ms. Storms added that she had checked into this employee's work record and that it indicated that he was Absent without Leave on March 4th, 2005 and that his employment was terminated. But then she added, I don't know exactly what the details were, but I believe there was a mistake made and he should have just been shown laid off at that time. Whatever happened, this employee did not go to the shortage and was eventually set up at his home terminal on March 15th, 2005. On April 9th, he was again laid off and then on April 30th, he was given a leave of absence by his trainmaster. Ms. Storms testified that she tried to contact his trainmaster as well as the Superintendent of his Division to see why this employee had been given a leave of absence, but that the trainmaster had retired and the Division had not kept any records of this instance. She also stated that the Superintendent didn't have any recollection of this situation. Ms Storms also added, We had a hard time contacting the employee and quite frankly he was dodging us. He did work the majority of time at his home location. He either worked or was in training or was on a leave of absence for the majority of the shortage. Finally, on December 25th, 2005, this employee was set up in Saskatoon.
[55] Employee U was called to cover the shortage in Vancouver at the same time as everyone else. Ms. Storms testified that she had personally talked to this employee and had been informed by him that his father was terminally ill. She added that she had then taken it upon herself to extend his time to report. This employee stayed on the laid off board until June 26th 2005, at which time he was given a leave of absence by the trainmaster at his terminal. On July 24th, he was set up at his home terminal. His father passed away in October and he booked off on bereavement. He stayed at his home terminal for the remainder of the year.
[56] Ms. Storms also testified that initially when they started contacting employees for the shortage, the staff at CMC would just write notes down in their work records as they were making the calls. But, because the shortage was so large, things were getting a little unwieldy and Ms. Storms instructed her staff to put charts together so that they could see where things were and how many people would cover the shortage. The information we find on these charts were gathered and recorded by different employees at CMC. The first chart was produced on March 7th, 2005.
[57] The entry on this chart for March 16th 2005 for Employee E indicates 15 days to report, 30 requested. G. Spanos pls advise or arrange travel. On April 20th, 2005, the entry shows Per Manitoba Zone [E] has been given a compassionate LOA until further notice - per Ron Smith - due to personal issue. According to Ms. Storms, Ron Smith is the manager of the running trades' employees for the Manitoba zone. Ms. Storms testified that she did recall a little bit about this instance. This situation was very similar to employee U. Employee E had a terminally ill parent as well. On May 19th, 2005, the entry indicates Per Manitoba zone this individual has been given a compassionate [leave of absence] until further notice per A. Nashman and K. Carroll. Mr. Carroll was the general manager of the Vancouver, South Division, and Mr. Nashman was the general manager of the Western Operation Centre. Employee E was on a leave of absence until July 30th, 2005 and afterwards absent without leave from July 31st to September 8th. On September 10th, he is transferred to another terminal (Brandon, Manitoba) and finally he resigned on October 19th.
(v) The Complainant's recall to work [58] On February 25th, 2005, the Complainant received a phone call from an unidentified employee of the CMC, in Edmonton. This employee asked her: If CN were to set you up, how long would you take to report to duty? She replied that that really depended on whether she was being set up in Jasper or if she was going to be forced somewhere else. According to her recollection, as she wrote it in a letter dated March 4th, 2005, addressed to C. Pizziol, the Trainmaster at the Jasper terminal, the CMC employee answered that it did not look likely that she would be forced anywhere as all terminals were short, including Jasper. In that case she figured that she would probably need a couple of weeks to figure out some sort of child care arrangement for her two children. This evidence of the Complainant was not challenged by CN.
[59] No other employee from CMC, other that the Director, Elaine Storms, was called as a witness. Elaine Storms was not privy to this conversation between the Complainant and the unidentified CMC employee.
[60] The next day, on February 26, 2005, Joe Lyons, the Manager Operations, Crew Management Centre, Western Operations, spoke on the telephone with the Complainant's husband. He informed him that the Complainant was being forced to Vancouver to cover a shortage under the provisions of the collective agreement.
[61] Joe Lyons, who used to work under Ms. Storms, was not called as a witness. Besides the fact that he no longer works for CN, no other explanation was given for his absence.
[62] CN also produced at the hearing a letter from Joe Lyons to the Complainant dated February 28th, 2005, which states: Further to our telephone call on February 25, 2005, recalling you to CN you are recalled to the working board effective immediately as per the provisions of Article 115 of Agreement 4.3. There is also a shortage at Vancouver which requires the Company to invoke the provisions of Article 89.10 and 148.11(c) of Agreement 4.3. This Article provides that non protected employees are required to protect work over the seniority territory. In keeping with this Article you are required to protect the shortage of Yard employees at Vancouver. The Complainant testified that she never received this letter. This letter had been mailed to the Complainant's former address in Jasper where she no longer resided.
[63] The Complainant explained that before the recall of 2005, she had never refused being forced to another location, but her family status had now changed making it a more difficult option for her. In her March 4th, 2005, letter to Mr. Pizziol she explained I am in a very difficult situation. I have 2 children: one aged 6 enrolled in kindergarten in a french immersion school in Hinton, the other is 21 months old. We live in a hamlet, Brule, of less than 180 people situated nearly 40 km from Hinton. We have no immediate family nearby to help with the children. There is no registered daycare in Brule. There is a daycare in Hinton, however they only have standard business hours. My husband is also a railroader who as you know is required to work around the clock and may be gone anywhere from 15 to 24 hours. Consequently, she requested a 30 day extension to explore any options that may exist.
[64] Mr. Pizziol never replied to this letter. Mr. Pizziol was not called as a witness at the hearing and no explanation other than the fact that he does not work for CN anymore, was given for his absence.
[65] On March 7th, 2005, the Complainant made a follow-up call to Mr. Pizziol and left a voice-mail message explaining her family situation and the difficulties related to childcare. On that same day, she also wrote to the Local Chairperson of the UTU informing him of the letter she had sent to her supervisor requesting the thirty (30) day extension, She also added this is a troublesome situation for me and I don't have many option due to my young family, [my husband] railroad career and where we live.
[66] On March 26th, 2005, she again wrote to Mr. Pizziol asking him to consider her family situation. She repeated what she had written in her earlier letter, informing him that it would be difficult to take her children with her to Vancouver and that because of childcare responsibilities, neither was it feasible to leave them with their father whose own work obligations would cause the same difficulties with childcare. She also requested that her situation be considered on a compassionate basis under the collective agreement and that she be allowed to wait out until Vancouver no longer required her services or until there was work available at the Jasper terminal or at the adjacent terminal in Edson. A copy of this letter was also sent to Ms. Storms. The Complainant did not receive an answer to this letter.
[67] Ms. Storms testified that she did not specifically recall this letter. She added that if she did receive the letter, and knowing that Mr. Lyon was helming the file, she would have forwarded it to him.
[68] The last paragraph of that letter stated: I can't possibly be expected to put my family through upheaval to move them for an undetermined length of time at a whim. Employees with restrictive medical conditions have in the past been accommodated to hold regular yard jobs i.e. diabetics when their seniority would not permit other work in the terminal instead of forcing them to relocate to where they could hold. Is it reasonable to ask the same considerations for parents of young children if they demonstrate the need and then she goes on I'm asking you to consider my situation on a compassionate basis. On cross examination, counsel for the Complainant asked Ms. Storms if that had indicated to her that the Complainant was seeking accommodation regarding her family status. Ms. Storms answered: No. I wouldn't have thought about it like that. When you are looking for a leave of absence, you go to your own supervisor. He may have conferred with Human Resources who look after that type of things. Most of our employees or a good deal of our employees have children and it was not a common consideration to request to be excused from protecting shortages. I would have expected Mr. Pizziol to contact Human Resources about this kind of thing. (The emphasis is mine.) No evidence that Mr. Pizziol contacted Human Resources regarding the Complainant's situation was produced at the hearing.
[69] On March 29th, 2005, the Complainant wrote to Joe Lyons, copying both Mr. Pizziol and Ms. Storms. In this letter she wrote that she had not receive notification in writing informing her that she was being forced to protect the shortage in Vancouver, although other employees in Jasper had received such notification. On that same day, she also sent a letter to Ms. Storms requesting her to reconsider her situation.
[70] Joe Lyon wrote to the Complainant on March 30th, 2005. In this letter, he informed the Complainant that her request for a thirty (30) extension had been authorised and that the date at which she would be expected to report to Vancouver was moved to March 29th. The Complainant testified that she never received that letter. The letter also makes reference to a telephone conversation of March 30th, 2005 between the Complainant and Joe Lyons. The Complainant testified that she had no recollection of a telephone conversation on that date.
[71] On April 27th, 2005, Joe Lyon again wrote a letter to the Complainant informing her that CN had accommodated her need for additional time to consider her options and make the necessary child-care arrangements. The letter went on to state that while CN recognizes that her child-care [issues] are important personal responsibility her obligation to CN is to manage those personal obligations in such a way that you are able to fulfill your employment and collective agreement obligations. The Complainant testified that she never received this letter. The address on the letter was not the correct address. CN acknowledged that the letter had been returned to the CMC stamped unclaimed by Post Canada and had not been remailed to the Complainant.
[72] In her letter of March 4th 2005, the Complainant had requested a thirty (30) extension to report for work. According to CN, the Collective Agreement allows for such an extension when an employee is employed elsewhere at the time they are notified to report for work. This was not the case for the Complainant. Notwithstanding the provision of the collective agreement, during a meeting in May 2005, between officers of CN and officers of UTU, CN advised the union that it would extend the time period for the Complainant to report for work until June 30th, 2005.
[73] Mr. Torchia testified on cross-examination that he had had discussion, sometime in May 2005, with the General Chairperson of UTU regarding the possibility of extending the time the Complainant had to report to cover the shortage. These discussions took place in Edmonton during a meeting where various topics were on the agenda. He added that he does not recall if he took any notes during this meeting or if any memos or emails were thereafter prepared. He further testified that he was the decision maker in regards to whether or not the extension would be granted.
[74] On June 20th, 2005, L. Gallegos, Manager Operations. Crew Management, Western Operations Centre, who had by then replaced Mr. Lyons, wrote to the Complainant indicating that CN had accommodated her needs for additional time to consider her options and make the necessary child-care arrangements. CN requested that the Complainant advise it by June 30th, 2005, whether or not she would report for duty to cover the shortage in Vancouver and it further informed her that her failure to do so would result in her forfeiting her seniority and her employment being terminated in accordance with the terms of Article 148.11 of the collective agreement. The letter added:
While the Company recognizes that your child care is an important personal responsibility, you must also acknowledge that your obligation to CN is to manage these personal obligations in such a way that you are also able to fulfill your employment and collective agreement obligations.
[75] On June 27th, 2005, the Complainant received another letter from Mrs. Gallegos informing her that her failure to report to Vancouver by that day, would result in her forfeiting her seniority rights and her services with the company being dispensed with at noon on July 2nd 2005, in accordance with the provision of the collective agreement.
[76] Ms. Gallegos was not called as a witness at the hearing and no explanation for her absence was given.
[77] On June 27th, 2005, the Complainant wrote a letter to Ms. Gallegos in which she states:
You have not addressed my previous letter dated March 26/05 which clearly states my position and my request to CN that would alleviate this situation. I did not request additional time to make necessary child-care arrangements as your letter implies. Your letter also implied I have not provided a response to the Company of whether or not I will be reporting for work in Vancouver. I provided a response in a letter dated March 26 to CN Supervisor (Jasper) C. Pizziol.
E. Storms also received from me a copy of a letter I addressed to J. Lyons, requesting to receive notice of recall that was sent out to other employees affected. I have since been waiting for a decision or response to my requests and to date have not received any. The only corresponden