Witwicky v. Canadian National Railway

Witwicky v. Canadian National Railway
Collection
Canadian Human Rights Tribunal
Date
2007-07-06
Neutral citation
2007 CHRT 25
File number(s)
T1123/0506
Decision-maker(s)
Doucet, Michel
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
WILLIAM CARL WITWICKY
Complainant
- and - CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and - CANADIAN NATIONAL RAILWAY
Respondent
DECISION
2007 CHRT 25 2007/07/06
MEMBER: Michel Doucet
I. INTRODUCTION
A. The Facts
II. THE EVENTS OF DECEMBER 31, 2001
III. THE RCMP REPORT
IV. FOLLOW UPS TO THE EVENTS OF DECEMBER 31, 2001
(i) Employees Statements
a) The Complainant's Statement
b) Larry Hindle's Statement
V. THE EVENTS FOLLOWING THE COMPLAINANT'S DISMISSAL
VI. THE REINSTATEMENT CONTRACT
VII. THE ALLEGATIONS OF HARASSMENT AND RETALIATION
VIII. ANALYSIS
A. The Sections 7 and 10 Complaints
B. Was a prima facie case made out?
C. Conclusion Regarding the Complainant's Sections 7 and 10 Complaints
D. The Section 14 Complaint
E. The section 14.1 Complaint: Has the Respondent retaliated against the Complainant?
IX. CONCLUSION
I. Introduction [1] On August 8 and October 25, 2003, William Carl Witwicky (the complainant) filed two complaints under Sections 7, 10, 14 and 14.1 of the Canadian Human Rights Act (the Act) against Canadian National Railway (the respondent). The complaints allege that the respondent has engaged in a discriminatory practice on the ground of disability and retaliation in a matter related to employment.
A. The Facts [2] The complainant grew up in the town of Jasper, Alberta, where he lived for thirty five years. He came from what he described as a railway family. He began working for the respondent on July 2 nd, 1975, as a part-time employee. He got hired on a full time basis on July 22, 1977. He has since been working for the respondent, at the exclusion of a period of eight months, during which he had been dismissed.
[3] The complainant is a train conductor. Conductors are part of a group of employees commonly called the running trades. These employees operate the trains. The complainant works out of Kamloops, British Columbia, where he also resides.
II. THE EVENTS OF DECEMBER 31, 2001 [4] On December 30, 2001, the complainant was called to work a train from Kamloops to Jasper, Alberta. The trip to Jasper took close to twelve hours. The train arrived in Jasper at 12:15 p.m., on December 31, 2001. Jasper being the final terminal, the complainant booked an eight (8) hours rest period This rest period would have ended at 10:15 p.m. at which time he would be subject to a call for work.
[5] The complainant received excessive layover pay1 for the period between 11:15 p.m., on December 31, and 6:55 a.m., on January 1, 2002. For this period, he received a compensation of $126.90. During his cross-examination, he said that he first became aware, on March 28, 2002, that he had been paid excessive layover pay for that period. He added that he had offered to return the money, but that the respondent had refused.
[6] Upon arriving in Jasper, the complainant booked a room at the bunkhouse. The bunkhouse is a facility where employees can book a room to rest before returning to work. While there he phoned his wife with whom he had recently separated. According to his own words, this conversation went sour and she informed him that she was going to file for divorce. He said that this information left him devastated.
[7] The complainant's sister lives in Jasper. After his conversation with his wife, he went over to her house to talk to her about his marital problems. They discussed his emotional state. He described himself as very distraught and upset. He added that he had been up all night and still hadn't had anything to eat. In his own word he was basically a mess.
[8] After talking with his sister, he decided to book himself off as unfit for duty. He had decided to stay in Jasper for a few days, as this was his last trip prior to his holidays.
[9] In order to book himself off, he telephoned the Crew Management Centre (CMC) in Edmonton, Alberta. The CMC oversees the day-to-day assignment of the manpower for the respondent's trains. The CMC works off a computer system referred to as the CATS, an acronym which stands for Crew Accountability and Timekeeping System. This system is used to help the CMC identify which employees are available for work at all time. According to the evidence of Richard Froment, the manager of CMC for Western Canada, the computer system ties into a train line-up and shows at what time the train is scheduled to run. CMC then identifies which employees will be working on those trains.
[10] Mr. Froment testified as to the procedure used by employees to book on or off the system. Booking off requires that the employee call CMC and tell them that he wants to be placed on a status other than available. The respondent is thereby informed that that employee is not available for work. The dispatcher will enter this information into the system. When this is done, it creates a permanent record that remains in the system for three years. After that period, the information is archived electronically and is available on request.
[11] The CATS does not show whether an employee booked off at his at-home terminal or at an away-from-home terminal. According to Mr. Froment, if an employee books off at the away-from-home terminal, the system automatically transfers the employee's turn back to his home terminal. By this, he means that the system will indicate that the employee is located at this home terminal. The crew dispatcher will also notify the Chief Rail Traffic Controller who is responsible to line up the manpower at the away-from-home terminal, so that he can find a replacement for the employee booking-off. Mr Froment indicated that booking off at the away-from-home terminal is very rare.
[12] An employee who has booked off is not subject to be called to work. In order to book-on again the employee has to call the CMC and request to be booked available. Mr. Froment explained that an employee who asks to be booked back on at an away-from-home terminal would, as a rule, be booked back on at his home terminal, although he accepted that it was possible to do it at the away-from-home terminal. CMC has the ability to take the employee's turn and move it to the away-from-home terminal but Mr. Froment added that in his twelve years at the CMC, he had never seen an employee book back on at the away-from-home terminal.
[13] When booking on or off, an employee must communicate with CMC by telephone. As indicated earlier, these phone calls are handled by crew dispatchers. There are eight crew dispatchers per shift working at the CMC, in Edmonton. Each dispatcher is assigned a specific territory. The employee will call a central number and will be directed to the dispatcher for his region. Mr. Froment explained that two methods are used to record the information when an employee calls in: first, the CATS system will stamp a permanent record into the system when the employee calls and secondly, their will be an audio recording of the call. Mr. Froment added that the crew dispatchers are told to keep the employee on the phone until all the information is taken down and recorded in the system. CMC wants to make sure that all the actions necessary to book an employee off are completed before the dispatcher moves on to another task. This method of recording calls was in place on December 31, 2001. At that time, the system used for recording the calls was described by Mr. Froment as a reel-to-reel system. Each tape would contain approximately one week's worth of data. It recorded the calls as they were received; so finding a specific call on the tape could be difficult.
[14] It would appear that in the case of the purported conversation between the complainant and CMC on December 31, 2001, no recording could be found. When cross-examined on this point, Mr. Froment acknowledged that a tape of the calls received on that day existed. He also said that he could not explain why a copy of this tape was not provided to the union when requested. Finally, he added that he had not reviewed the tape for that day before the hearing.
[15] During his cross-examination, Mr. Froment accepted that errors did happen and that employees were not booked-off or booked-on when they should have been. He also indicated that this was normal considering that CMC receives over a million calls per year. He further specified there would be probably six incidents a month on average where an employee was booked off incorrectly.
[16] A printout of the complainant's work history for December 30, 2001 to January 3, 2002, as recorded on the CATS system, was entered in evidence. There was no record on the work history of the complainant booking off unfit on any of those dates.
[17] Coming back to the evening of December 31, after his sister had left with some friends, the complainant went out for dinner with a friend. He acknowledges that he had some drinks of alcohol during that evening. He testified that to the best of my recollection it was maybe a total of six or seven drinks.
[18] Later during the evening, at around 10:30 p.m., the complainant was taken into custody by the RCMP when he was found passed out in a stolen vehicle. According to the complainant's recollection, when he left the restaurant there was a long wait for taxis. He said that he was offered a drive by an individual whom he believed worked at the restaurant. After a couple of blocks the driver abandoned the vehicle and that is where the RCMP officers found him.
[19] He spent the night of January 1, 2001, in police custody. The next morning, at 7:25 a.m., he provided a statement to the police. According to the police document, this interview ended at 7:52 a.m. The complainant was initially charged with possession of stolen property. This charge was later dropped.
[20] The complainant was released from police custody on the morning of January 1, 2002, a little before 8:00 a.m. He got a ride with an off-duty RCMP officer to the bunkhouse to retrieve his belongings. He arrived at the bunkhouse a little after 8:00 a.m. He was then told that a supervisor was looking for him to take a call for duty on a train leaving for Kamloops.
[21] According to David James, who was the on-duty supervisor in Jasper, the complainant was ordered on a train for 7:10 a.m. At the away-from-home terminal, the employee is responsible to provide the CMC with a room number where he or she can be reached. In this particular case, when it came time to call the complainant, he was nowhere to be found. CMC was notified and the MCO (Manager of Corridor Operations) contacted Mr. James at his home to advise him of the situation. Mr. James testified that he made a few phone calls. One to the hospital, in Jasper, and another to the RCMP, to see if they had any knowledge of where the complainant might be, but to no avail. The call to the RCMP was automatically forwarded to the Edson detachment, a town about 160 kilometres away, because there were no on-duty RCMP officers at Jasper at the time. This is surprising since Mr. James testified that he made the calls between 7:00 and 7:30 a.m., and the complainant at that time was still detained at the Jasper detachment. The answer given by the Edson detachment, according to Mr. James, is also surprising since it appears that they did not bother checking with the detachment in Jasper where they would have found an answer to their queries.
[22] Mr. James added that he also spoke to Larry Hindle, the engineer who had worked the train with the complainant the previous day to see if he knew about the complainant's whereabouts. Mr. Hindle answered that did not know where the complainant was.
[23] At approximately 8:10 a.m., just before he was getting ready to drive to Jasper, Mr. James got a call from the bunkhouse attendant indicating that the complainant had just showed up. He then asked to speak to the complainant. He said that he asked him where he had been and the complainant answered I spent the night at a friend's place. He also added that he had asked him why he had not let anybody know where he could be reached. The complainant answered I screwed up and would in the future do this.. He finally asked the complainant if he was fit to go to work, to which he answered that he was. Based on this answer and on the fact that the complainant sounded normal, Mr. James told him to get on the train as soon as possible. On cross-examination, the complainant conceded that at no time during this conversation did he mention that he had booked himself off as being unfit the night before, nor did he later contact the CMC to book himself back on, as it would be the normal procedure.
[24] Later that same morning, Mr. James phoned Mr. Mitch McAmmond, the on-duty train master in Kamloops, and told him that the complainant had been late for his assignment at Jasper. He also informed him that the train had been delayed as a result. He suggested that Mr. McAmmond may want to speak to the complainant upon his arrival in Kamloops.
[25] The train got into Kamloops at about 7:00 p.m. on January 1, 2002. On arriving at destination, the locomotive engineer, Larry Hindle, and the complainant proceeded to do their time return tie up in the computer room. At that time, according to the complainant, supervisor McAmmond walked through the room. He wished them both a happy New Year and then inquired how the trip had gone. He never questioned the complainant. Larry Hindle corroborated this version of the events.
[26] The version of Mr. McAmmond is quite different. He testified that when he saw the train arriving, he walked towards it to meet the crew. He said that he saw Mr. Hindle get off and that he waited for the complainant to come off but he never did. Mr. McAmmond got on board the train to see if the complainant was still there but he did not find him. He then went back into the building and asked Mr. Hindle if he knew where the complainant was, Mr. Hindle answered that he did not. He added that he was never able to locate the complainant on January 1, 2002. If the version of Mr. McAmmond is correct, then the complainant would have had to have gotten off the train before it pulled into the station at Kamloops. This certainly would be very unusual and one would expect the respondent to investigate such an incident. It is curious that Mr. McAmmond did not pursue this matter further by interviewing the complainant as to his whereabouts when the train pulled into the station on that day. Considering Mr. McAmmond's recollection of what happened on that day, I will, if it is relevant to my decision, accept the complainant's version of what happened.
[27] On January 7, 2002, the complainant left for a month and a half vacation to Australia.
III. The RCMP Report [28] Constable Benoit Lecuyer of the Royal Canadian Mounted Police ( the RCMP) was one of the officers on duty on the evening of December 31, 2001. At around 10:00 p.m., the detachment received a complaint regarding a stolen pick-up truck. The truck was parked outside a restaurant in Jasper and when the delivery person for the restaurant came out to use it, it was gone. The vehicle was later located in a parking lot in front of a gas station. An individual was passed out in the passenger seat and the engine of the vehicle was still running.
[29] At around 10:48 p.m., Constable Lecuyer arrived on the scene where the stolen vehicle had been located. He testified that he noticed that there was one male individual, who appeared to be sleeping on the passenger side. As he approached the truck, he said that he could smell a strong odour of alcohol. He added that he tried to wake the male occupant up for approximately five minutes, but to no avail. Constable Lecuyer and another colleague then pulled the individual out of the vehicle in order to proceed to his arrest. According to Constable Lecuyer, the individual was highly intoxicated.
[30] Constable Lecuyer testified that they were able to identify this person by his British Columbia driver's licence as William Witwicky, the complainant. At the detachment, the complainant was put into a holding cell. During all this time, he was still passed out.
[31] At around 1:16 a.m., Constable Lecuyer was informed by the cell block guard that the complainant was now awake and standing up. He said that he then approached the cell and tried to determine his level of consciousness. He added that he noticed that the complainant was using the walls of the cell for balance which indicated that he was still intoxicated. He then tried to explain to the complainant where he was and why he was there. The complainant just nodded his head but did not reply. According to the officer, the complainant did not appear to understand what was happening.
[32] Constable Lecuyer returned to check on the complainant at around 3:01 a.m. and found him wide awake but agitated. He said that he tried to calm him down. The constable again concluded that the complainant was still too intoxicated to understand fully what was happening.
[33] His next dealing with the complainant was around 7:25 a.m. on the morning of January 1, 2002. He noticed that, at this time, the complainant was calm and in a better condition to understand why he was being detained. He decided at this point to let him out of the cell and proceeded to lead him to the interview room where his rights and police caution were read to him. The complainant advised the officer that he did not want to call a lawyer. He added that he hadn't done anything wrong and that he wanted to apologize for his behaviour. He then proceeded to give a recorded statement to the officer.
[34] The complainant was later charged with possession of stolen property and released, at around 8:00 a.m., on his own recognizance. The follow-up investigation was conducted on January 2, 2002. It mainly consisted of going back to the restaurant from where the truck had been taken. Constable Lecuyer stated that, during this investigation, he spoke with the owner of the restaurant and two other employees. According to these interviews, the complainant arrived at the restaurant at around 8:00 p.m. with two other individuals. The owner of the restaurant also informed the constable that he did not want to pursue this matter any further. Following this, the constable informed the complainant that the charges relating to stolen property had been dropped.
[35] The Continuation Report prepared by Constable Lecuyer indicates that on January 9, 2002, Constable Benoit Tessier, a policeman with the respondent, had contacted the Jasper detachment of the RCMP and had requested a copy of the complainant's statement as soon as possible. On January 24, 2002, a transcription of this statement was forwarded to Constable Tessier.
IV. Follow ups to the events of December 31, 2001 [36] On the complainant's return to Kamloops from his Australian vacation in late February 2002, he contacted Mr. Gary George Kopp, Chairperson for the Local Committee of Adjustment of the United Transportation Union, to see how things were going. Mr. Kopp informed him of a conversation he had with Hans Nederpel, a supervisor with the respondent. He said that Mr. Nederpel had approached him and had brought up the subject of the complainant's conduct on December 31, 2001. According to Mr. Kopp, Mr. Nederpel said that the complainant had a drinking problem and that he wanted to see him in a program for alcohol abuse.
[37] The complainant was suspended from work on March 22, 2002. A formal investigation of the matter was then undertaken by the respondent. Two employee statements, one of the complainant and the other of Mr. Larry Hindle, were conducted. The first one, with the complainant, was conducted on March 28, 2002, while the second, with Mr. Hindle, took place on April 17, 2002.
(i) Employees Statements a) The Complainant's Statement [38] The complainant's statement lasted from 10:00 a.m. to 6:30 p.m., with a break for lunch. The employee statement is not a transcript of everything that is said during the investigation. It is a résumé of the questions asked and the answers given. The statement is prepared by an investigator chosen by the employer. At the end of the investigation, the employee and his representative are asked to read the document and to sign it.
[39] Mr. Kopp was the complainant's representative at his employee statement. The investigation was conducted by Mr. John Gosse. Before the start of the procedure, Mr. Kopp had requested that certain documents be made available for inspection including [a]ll transactions and/or all tapes of any conversations between Mr. Witwicky and the involved Transportation Supervisor and/or any Yardmaster and/or any other employees of the railroad on the evening and day that the incident took place. Mr. Kopp testified that he was never provided with the tapes requested. He added that he had also objected to the excessive delay in holding this investigation.
[40] The statement indicates that the complainant arrived in Jasper at 12:15 p.m., on December 31, 2002. He had booked eight (8) hours rest, placing himself ready for duty at 8:15 p.m. He had a room at the bunkhouse. He said that after checking, he went over to his sister's home and there, called his estranged wife. This is a different version of events than what the complainant had testified to at the hearing. He then said that he had called his wife from the bunkhouse before going over to his sister.
[41] During this conversation, his former wife informed him that she would be asking for a divorce. He said that this information left him emotionally distraught and that he didn't feel mentally capable of doing his job. He added that he then phoned his employer to book himself unfit for work. The complainant said that he spent the rest of the afternoon at his sister's house.
[42] At around 6:30 or 7:00 p.m., a friend came over to pick him up and they went to a restaurant. He said that he had several drinks there and had something to eat, although later he adds the he had several drinks on an empty stomach.
[43] During the statement, Mr Gosse asked the complainant to explain, if he had indeed booked himself unfit, why he had been placed on excessive layover pay from 11:15 p.m to 6:55 a.m., on the night of December 31 to January 1st. The complainant answered: It never occurred to me. Now in retrospect I should have contacted them and have it removed.
[44] Asked by the investigating officer why he had taken the January 1st call, if he had indeed booked unfit the day before, the complainant answered: When I arrived at the station, I found out that I was called for 0710 and that the crew office had held the call for me. The train was there. I felt that it was in my best interest given the fact that I was totally sober and fit for duty, that I was responsible to do my job without delaying the train or getting myself in deeper trouble. I realize that I never should have booked unfit at the away from home terminal but giving my state of mind, I felt it was the right thing to do at the time.
[45] On the morning of January 1, 2002, at around 8:10 a.m., the complainant spoke with supervisor Dave James who asked him if the was fit for duty and the complainant answered, yes. The record indicates that he did not inform supervisor James that he had booked unfit the day before, nor did he informed him that he had spent the night at the police station. The complainant explained that he didn't think he needed to, since Mr. James had told him that he had talked to the RCMP and that the complainant would have questions to answer on his arrival in Kamloops.
[46] Asked how he could have said that he was fit for duty on the morning of January 1st 2002, when according to the RCMP reports he was still intoxicated at 3:01 a.m., the complainant answered that by the morning he felt totally sober. He added that he had had several hours to sober up and that he had realized that he should never have booked himself unfit for duty. He felt that what had happened during that evening was an isolated incident and a big mistake which could be explained by the very difficult time he was going through in his personal life. He said that he felt very remorseful and embarrassed by the whole situation.
[47] The employee statement report was signed by the complainant and by his representative, Mr. Kopp.
b) Larry Hindle's Statement [48] Larry Hindle is a locomotive engineer. On April 17, 2002, he gave an employee statement in connection with his tour of duty on December 31, 2001, and January 1, 2002, while operating the train from Jasper to Kamloops. The statement was conducted by Mr. John Gosse before Mr. Kopp, who was acting as the complainant's representative, and Mr. Jim Manson, Mr. Hindle's representative.
[49] Mr. Hindle was the locomotive engineer on train Q103, on January 1, 2003, on the return trip to Kamloops. He indicated that, during this trip, the complainant had operated the locomotive on the stretch between Blue River and Kamloops. Mr. Hindle added that the complainant seemed fine when he arrived for work. He also indicated that he had told him that he had booked himself off unfit for duty on the previous night without giving any explanation as to the reasons why.
[50] Mr. Hindle also mentioned that upon the train's arrival in Kamloops, he was approached by supervisor Mitch McAmmond with whom he said he exchanged New Year's greetings. He also indicated that the complainant was present during this encounter.
[51] Finally, in response to a question asked by Mr. Kopp, Mr. Hindle mentioned that he had been interviewed about the events of December 31, 2001, on January 28, 2002, by supervisor Dave James in Jasper. He also added that, at that time, the supervisor had in his possession a transcript of the complainant's statement to the RCMP.
[52] Following his investigation, Mr. Gosse prepared a summation of these two employee statements. He concluded: In view of the above information and investigation, it is recommended [...] that [the complainant's] employment with the [respondent] be terminated for violation of CROR General Rule G and violation of GOI Section 8, part 3.1 including violations of CN Policy to Prevent Workplace Alcohol and Drug Problems. This summation was forwarded to Eric Blokzyl, the then District Superintendent for British Columbia South. Mr. Blokzyl testified that, because of the severity of the violation, he immediately contacted his superior, Mr. James Fitzgerald, General Manager Operations Pacific Division - British Columbia, to discuss the matter. After this discussion with Mr. Fitzgerald, Mr. Blokzyl told Mr. Gosse to proceed with his recommendation.
V. The Events Following the Complainant's Dismissal [53] The complainant was dismissed, on April 19, 2002.
[54] The Union filed a grievance contesting the complainant's dismissal. It took the position that the respondent had disciplined the complainant on improperly obtained evidence. Consequently, it submitted that the investigation was flawed and requested that the discipline assessed to the complainant be cancelled.
[55] On July 19, 2002, the complainant was diagnosed with squama cell carcinoma. He had a tumour on his tonsil and it had spread into several lymph nodes in his neck. His medical condition was very serious and his doctor decided to operate immediately to have this tumour removed. On July 24, he underwent a neck surgery to have the lumps removed. After the operation, he received thirty treatments of radiation. These treatments lasted until around the middle of October 2002.
[56] The complainant's also testified that his dismissal left him devastated and that, at that time, he solicited counselling from the Employee Family Assistance Program (EFAP). He also sought other employment. He filed for unemployment insurance and received these benefits until his cancer was diagnosed, at which time Human Resources put him on sick leave benefits.
VI. The Reinstatement Contract [57] In October 2002, the vice general chairperson for the United Transportation Union, Mr. Ron Hackle, contacted the complainant. Mr. Hackle told him that Mr. Robert Reny, from the Labour Relations department of the respondent, had indicated that the respondent would be prepared to reinstate the complainant, conditional on him agreeing to the terms outlined in a Reinstatement Contract.
[58] Several days later, Mr. Hackle contacted the complainant and informed him that he had a deal with the respondent. He explained that the complainant could return to work immediately if he passed the respondent's medical requirements and signed a Reinstatement Contract. The complainant said that he then contacted Mr. Kopp to discuss his options. He testified that although he felt that this was a violation of his human rights, he had no other option but to sign the document if he wanted his job back.
[59] The complainant signed the Reinstatement Contract on November 2, 2002. The contract was also signed by Barry Henry, the General Chairperson of the United Transportation Union, the complainant's union, and an officer of the respondent.
[60] A week after he had signed the Reinstatement Contract, the complainant was contacted by a nurse from the respondent's health provider, Medisys. She informed him that he would have to pass a medical before returning to work. On November 16, 2002, the complainant saw the respondent's doctor who did a complete physical examination. The doctor did not require, at this time, that any alcohol or drug testing be administered. He cleared the complainant for his return to work.
[61] On November 22, 2002, the complainant met Eric Blokzyl, Superintendent Operations, who welcomed him back to work. At around one o'clock in the afternoon, he was put back on the furlough board2. Later, on the same day, at around 5:30 p.m., the complainant got a call from supervisor Mitch McAmmond informing him that he was pulled out of service following the instructions of supervisor Gosse. Supervisor McAmmond told the complainant that he had no idea as to the reasons why he was being pulled off and that he should call supervisor Gosse if he wanted more information.
[62] The complainant immediately called supervisor Gosse whom, according to the complainant said Mr. Witwicky, I hear you're trying to pull a fast one by trying to get yourself back on the working board. The complainant told him that the had been cleared to return to work by supervisor Blokzyl, to which Mr. Gosse answered that Mr. Blokzyl was not his immediate supervisor, that he was and that he would decide whether the complainant could go back to work or not.
[63] On that same day, Mr. Kopp testified that he had a conversation with Mr. John Gosse. He stated that Mr. Gosse had asked him if the complainant had provided a blood sample or a urine sample to the respondent's medical provider, prior to being cleared to come back to work. Mr. Kopp answered no.
[64] Mr. Gosse did not deny removing the complainant from the working board on that day. He explained that the complainant's Reinstatement Contract provided that certain things had to be done before he would be allowed to return to work. Mr. Gosse said that he had not been informed that the complainant had met with Mr. Blokzyl. He added that he pulled the complainant from the working board for a short period of time in order to confirm that he had indeed complied with these obligations under the contract. Once the meeting with Mr. Blokzyl had been confirmed, he put the complainant back on the working board. He added that not more than a couple of hours had elapsed between him pulling the complainant off work and then putting him back on. No pay was deducted from the complainant's salary during this time.
VII. The allegations of Harassment and Retaliation [65] Most of the facts surrounding the allegations of harassment have to do with the tenuous relationship that existed between the complainant and his supervisor, Mr Gosse. This strained relationship certainly showed during Mr. Gosse's cross-examination by the complainant. Mr. Gosse was a very uncooperative witness with significant memory lapse whenever the questions of the complainant did not seem to please him. He was argumentative and somewhat provocative in the way he answered the questions.
[66] Mr. Gosse was, at all time relevant to the present case, the Assistant Superintendent, Manager Train Service, for the respondent in Kamloops. His duties were the overall running of the terminal. He was responsible for all the running trade employees. He characterized his position as a frontline supervisor. Mr. Gosse resigned his position with the respondent on June 30, 2006. He now works for Via Rail.
[67] The first allegation of harassment raised by the complainant occurred on March 14, 2002. The complainant was then representing Mr. Plante, a co-worker, at a formal investigation. During these proceedings, the complainant claims that Mr. Gosse came into the room and stated: I have been reading some very funny stuff about you on the [bathroom] walls. None of the individuals present during this statement could recall this exchange.
[68] According to the complainant, Mr. Gosse was referring to a document entitled Procedures and Protocols for use of the Jasper Pizza Truck which was a parody of the December 31, 2001 events. The document did not specifically refer to the complainant by name but the events it narrated were certainly referable to what had happened in Jasper. The complainant testified that he found these documents posted on various bathroom walls in the respondent's workplace. The complainant made enquiries to various employees whether they knew where the bulletin had originated from, but to no avail. The complainant provided the respondent with the name of a fellow employee who had been seen with copies of this document which he had handed out to another employee. For an unexplained reason, during its investigation of these allegations, the respondent did not interview this employee.
[69] It is interesting to note that, during his cross-examination, Mr. Gosse admitted that he had been informed by an employee that this document was being distributed but never investigated the matter further.
[70] Another incident occurred on January 17, 2003. On this day, the complainant was required to attend a CN medical appointment for drug and alcohol testing. He had obtained proper authority from supervisor J. Power to attend this medical. The complainant took the time off, went to his medical appointment and when supervisor Gosse was informed of this, he penalized the complainant one day's pay. A grievance was filed by the complainant following this incident.
[71] Mr. Gosse explained that Mr. Power was a supervisor who had come up to Kamloops on loan since they were short of supervisors at the time. He added that he came from Vancouver where they did not have a Furlough Board, so he was not aware of the policies and procedures for employees on the board. He explained that while on the Furlough Board, the complainant was paid a set daily rate. If he was allowed to book for the medical, as requested, he would, under the collective agreement, be paid a different daily rate which would be higher than what he would normally receive on the Furlough Board. Allowing the complainant to book off was, according to Mr. Gosse, contrary to these policies and procedures and that is why he intervened to reverse the decision and take away the part of the payment to which the complainant was not entitled to.
[72] One month later, on February 17, 2003, the complainant was once again called by Medysis to provide another drug and alcohol test. At that time, the complainant was on what is referred to as the protected Furlough Board. He phoned his supervisor Mr. Gosse to get authorization to attend the appointment. He explained to Mr. Gosse that he was required to attend the medical appointment and that he needed his authorisation to be off because he was on a working board. Mr. Gosse asked him when the appointment was, what it was for and how long it would take. According to the complainant, when informed of the reasons for the appointment, Mr. Gosse started laughing uncontrollably. The complainant added that he felt degraded by his supervisor's conduct.
[73] According to the respondent, this request was declined on account of the complainant's position on the Furlough Board at that specific time. Mr. Gosse explained that he considered where the complainant was on the Furlough Board and since he was not in a position to be called to work, he decided not allow the request. The respondent further adds that it is its policy that medical appointments be scheduled during employee's time off.
[74] The complainant stated that he had no choice but to attend this appointment since this was one of the condition set out in the Reinstatement Contract. He explained that if he did not attend he could be fired for not respecting the terms of the contract. According to the complainant, Mr. Gosse told him you can take your chances, Mr. Witwicky and see what happens. Finally, he did not give the complainant authorization to take time off for this appointment.
[75] In February 2003, the complainant held the position of vice-local Chairperson of Local 691 of the United Transportation Union, in Kamloops. Sometime during that month, he was contacted by a supervisor D. Savage to attend a company-initiated meeting. The complainant informed supervisor Savage that he would attend the meeting provided supervisor Gosse authorised his booking off on company business. Supervisor Gosse did not give his consent and the complainant did not attend the meeting. Following the complainant's refusal to attend the meeting, he was penalized one day's pay.
[76] The complainant also referred to a mentoring program that the respondent had put in place. According to this program, each employee of the running trades was assigned a mentor. The mentor was somebody the employee could go to if he had a problem. Prior to being terminated, the complainant's mentor was an individual named Elio Marrelli. Upon his return to work after having been dismissed, the complainant learned that his mentor was going to be Mr. Gosse.
[77] On March 17, 2003, he wrote a letter to Mr. Blokzyl requesting that he be assigned a new mentor. In a letter addressed to the complainant, dated June 10, 2003, Mr. Blokzyl states that the request by the complainant to have a mentor change had been complied with in accordance with your wishes. The complainant testified that there was never any change in mentor and that Mr. Gosse continued to act as such until July 2006.
[78] The complainant wrote a letter to Mr. Gosse on March 18, 2003, in which he requested that Mr. Gosse stop harassing [him]. A copy of this letter was send to Mr. Blokzyl. Mr. Blokzyl replied to this letter on April 8, asking for more details regarding the allegations contained in the complainant's letter.
[79] On April 29, 2003, in accordance with the respondent's Human Rights Policy for a Harassment Free Environment, Mr. Roger Worsfold, a Transportation Officer, for the respondent, was mandated to conduct an investigation regarding the complainant's allegations of harassment. For this, Mr. Worsfold conducted an interview of Mr. Gosse and interviewed the witnesses that the complainant had identified, namely Hans Nederpel, Jerry Plante, Jim Manson and Mike Robinson. Following these interviews, he proceeded to interview the complainant. Based on these interviews and on various documents that he had, he concluded that the allegations of harassment were unfounded.
[80] The allegation of retaliation pertains to a situation regarding an employment opportunity with the U