Whyte v. Canadian National Railway

Whyte v. Canadian National Railway
Collection
Canadian Human Rights Tribunal
Date
2010-09-29
Neutral citation
2010 CHRT 22
File number(s)
T1354/8408
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
KASHA A. WHYTE
Complainant
- and - CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and - CANADIAN NATIONAL RAILWAY
Respondent
DECISION
2010 CHRT 22 2010/09/29
MEMBER: Michel Doucet
I. INTRODUCTION
A. THE FACTS
(i) The Canadian National Railway
a) General information
b) Running trade employees
c) The changes made in 1992 and the creation of the furlough boards
(ii) The Complainant
(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?
(iii) Has a prima facie case of discrimination on the basis of family status been made out?
(iv) Did CN provide accommodation to the Complainant?
(v) Conclusion
D. REMEDIES
(i) An Order that CN Review its Accommodation Policy
(ii) Reinstatement
(iii) Compensation for lost wages
(iv) Pain and suffering
(v) Willful or Reckless Conduct
(vi) Costs and Interest.
(vii) Interest
I. Introduction [1] This is an employment discrimination case on the basis of section 7 of the Canadian Human Rights Act (the CHRA). Kasha A. Whyte (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 similar complaints filed against CN. By agreement of the parties, the matter in Denise Seeley v. CN was treated in a different hearing which was heard prior to this one. Although heard together, it was agreed during a case management conference that the complaints of Cindy Richards and Kasha A. Whyte would be rendered in two different decisions.
[5] Although the facts in the Seeley case and in the Richards and Whyte cases are very similar and that the witnesses for CN were the same, except for Cathy Smolynek who only testified in the two latter cases, the evidence submitted in the Seeley case and in the Richards and Whyte cases is, in many regards, different. The witnesses of CN, who had testified previously in the Seeley matter, did not, without necessarily contradicting themselves, repeat exactly the same evidence in the Richards and Whyte cases. Also, documents which had not been presented at the Seeley hearing were filed as evidence in the Richards and Whyte cases. These differences will explain any discrepancies that may exist in the facts of the Richards and Whyte matter when they are compared to the Seeley decision.
A. THE FACTS (i) The Canadian National Railway a) General information [6] 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.
[7] CN has more than 15,000 employees in Canada. These employees are organised in two distinct 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, also known as running trade employees, consist of Conductors and locomotive engineers.
[8] CN has over 4,000 running trades employees throughout Canada of which 2,400 are Conductors. According to Ms. Stephanie Ziemer, a Human Resources Officer for CN in Vancouver, the figure for Conductors in 2005 would have been slightly higher at 2,500.
[9] In answer to a question from CN's counsel, Ms. Ziemer indicated that CN does not track the number of its employees who are parents. She added that this information is only solicited when the employees enroll for CN's group insurance benefits. She further added that based on that information roughly 69 percent of our employees are parents. According to her evidence this information would be up to date to May 2009. She added that she would estimate [the number] as being higher because, not everybody participates in our group insurance benefits, particularly if they have a spouse that has coverage outside of CN in terms of their employment.
[10] Challenged by Counsel for the Complainant about the accuracy of those numbers, Ms. Ziemer explained that they had been gathered by CN's manager of benefits administration in Montreal. CN's counsel then showed counsels for the Complainant and the CHRC what was described by the Complainant's counsel as a thick bundle of names listed by what appears to be personnel number order. Although this list did identify Conductors and their dependants, counsel for the Complainant added that there was nothing about the 69 percent figure. She therefore concluded that someone must have then taken that document and done some calculations. She then asked that the documents where these calculations were done be produced.
[11] Mr. Paquette, counsel for CN, explained that the calculation had been done by someone at CN's legal department. He then added that he had very likely communicated these numbers to the witness. Asked by the Chair if, when Ms. Ziemer had indicated that the numbers had been communicated to her by someone in Montreal, she meant the legal department, counsel answered very likely, but he added that the information itself comes from CN's human resources department. He added that it was simply a question of sitting down and doing the adding one by one.
[12] On cross-examination, Ms. Ziemer indicated that she had not done the calculation herself. She added that the figure of 69% for both group was given to her during a conference call, but she could not remember who the person who gave her the information was. Regarding the thick bundle of names, Ms. Ziemer indicated that she was seeing this document for the first time at the hearing. Considering the evidence of Ms. Ziemer, the Tribunal will not give much weight to this part of her testimony.
[13] For operation purposes, CN is divided in two main regions, the Eastern region and the Western region. The Western Region includes all of CN's rail terminals from Vancouver, British Columbia, to Thunder Bay, Ontario.
[14] The Crew Management Centre (CMC) in Edmonton is a very important part of CN operations. It is responsible for all crew callings and deployment for the Western region. It manages the workforce deployment for running trade employees and a payroll of 204 million dollars. The CMC has fifty-four (54) employees who report to Elaine Storms, the Director of CMC. Ms. Storms occupied that position in 2005 and she was a key witness for CN at the hearing.
[15] CN also has a Peoples Department which includes Human Resources and Labour Relations. Although both fall under the same department, they have very distinct functions. Human Resources deals, amongst other, with human rights complaints, while labour relation will deal with matters arising out of the collective agreement. In 2005, Mary-Jane Morrison was the Human Resources person in charge of the portfolio for running trade employees in Jasper.
b) Running trade employees [16] As stated earlier, locomotive engineers and Conductors form part of what is identified as the running trade employees. Locomotive engineers operate the engine and Conductors are basically in charge of all the other aspects pertaining to the movement of a train.
[17] Running trade 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. A yard employee would typically work in the yard, switching box cars and making up trains. The yard employee does not leave the terminal.
[18] In terms of hiring, CN tends to hire its running trade employees in large group. According to Ms. Ziemer, CN did a lot of hiring in the seventies and a little bit of hiring in the 80s and in the early 90s. She further added that CN has done significant hiring from 2005 straight through to the end of 2009.
[19] 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%.
[20] The cost of training a Conductor is around 50,000 to 80,000 dollars. This amount includes the wages of the employee and of the instructor and also, if necessary, their accommodation. The training takes from four (4) 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.
[21] 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 renewed every three years. If the employee is on the working board, he or she will generally get a notice telling him or her that his or her cards are about to expire and then he or she 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 on his own, although for the rules card, he or she will need the approval of his supervisor.
[22] 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 a pool.
[23] An employee can also be set up, meaning that he will be on the working board at his terminal. The decision to set up an employee is made by the manager of the terminal. The decision is based on the number of employees needed at the terminal to perform the work that is expected.
[24] There is also another board, which forms part of the working board and which is designated as the spare board or emergency board. Employees on this board are only called to work to fill in when other employees are either on vacation or unavailable to work for any other reasons.
[25] Due to the nature of CN's operations, running trades employees must be able to work where and when required, subject to restrictions imposed by law and by the collective agreement. In light of these considerations, CN feels that mobility and flexibility constitutes basic job requirements for these employees. It considers these requirements as necessary because of the volume of goods CN transports and because of the fluctuation in traffic which can occur over a short period of time due, for example, to changes in the economy or to seasonal factors such as the grain harvesting season.
[26] The work schedule of a Conductor is very unpredictable. Depending on which board the Conductor is set on, he or she may know more or less about the kind of work he or she may be called upon to execute. Therefore, all working assignments on road service have totally unpredictable schedules. A Conductor is expected to be available to report to work within two hours of receiving a call from CMC. Once a Conductor reports for duty, he or she will have no idea of when exactly they will return home. They may be gone for a few hours up to almost two days.
[27] Running trade employees work on a mileage basis. The working board is adjusted on a 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 at a certain terminal for the following week.
[28] At all relevant times to this matter, Conductors in the Western Region of Canada were represented by the United Transportation Union (Union). 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 [29] In 1992, technological changes allowed CN to do away with the car at the tail end of the train, which is 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 brakeman 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.
[30] A furlough board comes into existence when there is a surplus of employees at a terminal, but not enough work for everyone. 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. Only a certain category of employees are allowed to bid on the furlough boards. These are called protected employees, while the non-protected employees are not entitled to the furlough board.
[31] 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.
[32] Other categories of employees include those who were hired prior to June 29th, 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 29th, 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.
[33] 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.
[34] 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. It is this provision that allows CN to force unprotected employees to other terminals in the Western region to cover shortages.
[35] 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.
[36] 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.
[37] CN also uses a system which is referred to as 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. According to Ms. Storms, whitemanning is the first thing CN turns to in case of a shortage, because it is a lot cheaper financially than forcing employees to cover a shortage.
[38] It is also possible that managers will be called upon during a shortage situation. Almost all of the transportation managers are qualified to operate trains. As a general rule, CN will call upon its managers as a last resort after it has exhausted its supply of running trades employees, including laid off employees.
[39] 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.
[40] 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.
[41] 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 to report. If he or she fails to report for duty or fails to give satisfactory reason for not doing so, he or she will forfeit all his or her seniority rights.
[42] 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 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 [43] The Complainant hired on with CN in Jasper, Alberta, on April 1st, 1991. She initially worked as a brakeman until she qualified as a Conductor in 1993. She continued to work as a Conductor until she was laid off in September 1998.
[44] Over her career, the Complainant worked at a number of railway terminals covering shortages, while always maintaining Jasper as her home terminal. In 1993, she worked a shortage in Calgary for almost a year until she was recalled to Jasper in 1994. In 1996, she bid on a shortage in Vancouver and worked there for about three months. In 1998, she bid on another shortage in Terrace, B.C. She was recalled to Jasper in August 1998 where she worked for two months before she was laid off.
[45] During the fall of 1998, she became pregnant and her son was born in June, 1999. She then took some time off but later returned to the available laid off status. From 1999 to 2001, she worked the Emergency Board in Jasper. The possibility to work the Emergency Board was made possible because of a local agreement concluded in 1998 between the local Union representatives in Jasper and the manager of the terminal. That agreement allowed for laid off Conductors who booked on the emergency board to be called to work ahead of those employees on the active furlough board. This local agreement was changed in 2001 when CN decided that it wanted to be able to call the active furlough board employees before any employees on lay off. CN felt that since it was paying a guarantee to the furlough board employees, but not to the laid off employees, it was financially advantageous for the company to use the furlough board employees first before calling the laid off employees to perform emergency board work. After this change, given the number of employees on the furlough board in Jasper, there was no chance for a laid off employee who booked OK on the emergency board being called.
[46] On cross-examination, the Complainant testified that she understood that covering shortages was part of her job and that Conductors could be called to work away from their home terminal. She even added that she loved to cover shortages, but that considering her family situation in 2005, she was not able to cover the shortage in Vancouver.
[47] The Complainant is a single parent with sole custody of her son. Although, the father maintains a regular relationship with his son, the Complainant has the primary responsibility for all aspects of parenting. The paternal grandparents live next door to the Complainant and they have an excellent relationship with their grandson.
[48] The father runs an outfitting business taking clients into the mountain for wilderness trips. In the winter he also runs a ski lodge. The Complainant explained during her testimony that the nature of the father's work makes him almost unavailable to undertake any parental obligations or duties.
[49] In 2002, while on lay off, the Complainant answered a canvas by the Union Pacific Railroad for Conductors to cover a shortage in St. Louis, Missouri, U.S.A. She worked there from August 2nd to December 15th, 2002. At that time, she made the decision to leave her son, who was then three years old, under the care of his paternal grandparents. She testified that while she was away, her absence did not seem to have any negative effect on her son, but when she returned home, she realized that leaving him behind was a mistake. She explained that he was very distressed by her absence. She testified that the negative emotional effects on her son were obvious. She gave as an example, the fact that he would not leave her side and was upset when she was not present. When his dad would come to pick him up, he would refuse to leave. The Complainant testified that she learned a lot from this experience and that unless, she could bring her son with her, she would not do it again.
[50] In the summer of 2003, the Complainant was contacted by the human resources department of the Union Pacific Railroad, regarding work on another shortage. She accepted the offer and reported to work in Tucson, Arizona, U.S.A, from October 28th, 2003 to March 15th, 2004.
[51] She testified that, given the negative impact that her time in St. Louis had on her son, she had determined this time that she was not going to leave him behind. Working with the Union Pacific Railway's human resources department, she was able to arrange to rent an apartment in Tucson large enough for herself, her son and a family member. The railway company covered the cost of travel to Tucson for her son and his father. After a while, the paternal grandparents came out and took over from the father who was able to return to his work in Jasper.
[52] She also testified that during that period she was by herself for a period of 1½ to 2 months. During that time, her son went back to Jasper with his parental grandparents.
[53] After her return to Jasper from Tucson, the Complainant noticed that her son was coughing a lot and that he could not breathe well when playing. She became concerned and sought medical attention. In January 2005, the condition became worse and her doctor referred her to a specialist. She was able to make an appointment for April 2005. Her son was diagnosed with respiratory difficulties.
(iii) The Vancouver shortage [54] 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 enough running trade employees locally to cover the work it had. 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, so they were nineteen (19) short. She added that it was definitively one of the most serious shortages that I had seen in my career.
[55] To accentuate the seriousness of this shortage, Ms. Storms testified that for the period between February 4th, 2005 to January 15th, 2006, the Vancouver yard had 726 overtime shifts for a total amount of $229,350.30. On cross-examination, she added that these numbers included the overtime done not only by Conductors, but also by locomotive engineers and, she added, possibly by yardmasters.
[56] Ms. Storms also testified that at about the same period the Jasper terminal was in a surplus situation. She explained that when, as it was the case in Jasper, a terminal has a furlough board, is supporting other terminals with whitemen and has employees on lay off, it is considered to be in a surplus situation. But she did acknowledge that in 2005, managers were used in Jasper because of train delays. She also added that for part of 2005 it became busier in Jasper and that after August 6th, 2005, there was no longer any employees on the furlough board there.
[57] 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.
[58] A shortage of running trades employees in Vancouver carries significant implications, as it can affect CN's ability to operate adequately throughout its network.
[59] 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 29th, 1990. As such, they were subject to Article 148.11(c) of the Collective Agreement.
[60] According to Ms. Storms' evidence, shortages are managed by the Board Adjustment Group at CMC. This Group was at that time under the direction of Joe Lyon who reported directly to Ms. Storms. The Board Adjustment Group dealt with the Vancouver shortage of 2005, but because it was short on staff, crew dispatchers were also involved in contacting the employees who were recalled to cover the shortage.
[61] Ms. Storms 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. She also testified that 2,144 tours had been handled by officers during the Vancouver shortage. She further added that this would be the most usage of officers that I've seen in the west in my career.
[62] In terms of how long this shortage might last, Ms. Storms testified 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.
[63] According to the evidence of Ms. Ziemer the shortage was eventually resolved over a period of a couple of years by CN hiring the right amount of employees in order to keep ahead of the amount of attrition and the significant growth in the business. She further explained that Vancouver is a very competitive job market: Unfortunately the construction industry was booming. We also lost a lot of potential candidates to the boom in the oil and gas industry in Northern Alberta. [...], it was very difficult for us to recruit over those two years [2005 and 2006], and it became cyclical. We didn't have enough successful employees through the recruitment selection process, so we had to readvertise, hold numerous career fairs. We had to advertise over and over again until we had the right amount of employees. And this was cyclical from 2005 through to probably mid-2007.
[64] 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.
[65] Ms. Ziemer also testified as to the housing arrangements for employees reporting to the Vancouver shortage. She explained that there were two hotels available in Surrey, B.C. One of these hotels was situated several blocks from CN's yards. This hotel, according to Ms. Ziemer's recollection, had large suites with fridges inside and then there was a communal kitchen set up for CN employees. The other hotel was closer to the yard and had suites. Ms. Ziemer added My understanding is that they had kitchen facilities in the suites as well.
[66] She also testified that CN could approve the rental of a house, an apartment or a condo. She referred to a situation which occurred in Vancouver - although she did not say when - where CN had approved the rental of a property because the price of the rental made more sense economically than paying $90 a night or $100 a night or a hotel for the 20 or 30 days that an employee would be required to be at the location to protect work
(iv) The Conductors recalled to cover the Vancouver shortage [67] Forty-seven (47) laid off Conductors in the Western region were recalled to cover the Vancouver shortage in February 2005. Ms. Storms explained that 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 according to the Collective Agreement. At the time of the recall, the Complainant was first on the seniority list of laid off employees at the Jasper terminal.
[68] Of the forty-seven (47) laid-off employees recalled, ten (10) reported to Vancouver and thirty (30) did not report and either resigned or were dismissed. The remaining seven (7) were either excused from reporting or were required at their home terminal.
[69] The forty-seven (47) employees were initially contacted by phone. According to Ms. Storms, when these employees were called they were told that they had fifteen (15) days to report to cover the shortage. She further added that she had instructed her group not to venture any information about the possible duration of the shortage since they did not have that information.
[70] At the hearing, CN produced Excel Spreadsheets containing information relevant to five employees who, according to its Amended Statement of Particulars, had reported to Vancouver. Counsel for the CHRC requested that CN produce the same information it had provided for these five employees for all of the other forty two employees recalled to Vancouver. These documents were disclosed in the form of Excel spreadsheets and contained numerous pages of information concerning their status during the particular period relevant to these proceedings.
[71] According to the Respondent List of Exhibits in this hearing, CN put into evidence the CATS records for five employees. (See Exhibit R-1, Tab 27 through Tab 31 inclusively.) It put into evidence two other CATS records (See Exhibits R-10 and R-11). Ms. Storms was questioned and cross-examined thoroughly on them by counsels. For its part the Commission put into evidence the CATS records for fifteen other employees. (See Exhibits HR-1, Tab 5 through and including Tab 10 and HR-2, Tab 23 through and including Tab 30).
[72] The remainders of the CATS records disclosed by CN were put into evidence by the complainants' counsel (See Exhibit C-33). These documents were not put into evidence in the format provided by CN. The Complainant's counsel, during her cross-examination of Ms. Storms, explained that she had created what she described as a document in a new format by re-sorting the information contained in the original Excel spreadsheet provided by CN. This new document was re-sorted in such way that it showed which employees recalled to Vancouver were available on any given date in the year 2005.
[73] On the last day of the hearing, CN's counsel raised an issue concerning the accuracy of some of the information on the spreadsheets. On January 18th, 2010, more than two months after the hearing, CN filed a motion asking permission to reopen its case to file further new evidence. This motion was dealt with in a ruling which can be found at 2010 CHRT 6.
[74] CN produced the documents and, as noted earlier, decided to put it in through the evidence of Ms. Storms. We can infer from this that CN felt that she had sufficient knowledge of the information contained on these documents to be able to testify to them. We will go over some of the information contained in these documents in some detail, as it was apparent that they were important for all the parties. In order to protect the privacy of the employees concerned, they will be identified by letters which do not correspond to their actual names.
[75] The documents indicate that employee 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, the documents indicate that he only worked on March 24th and then did not work again until April 1st. After this date, he works on April 10th and 11th, but doesn't work after that until April 18th. On July 22nd, 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 after that date until September 22nd. He works again on September 30th and then does not work until October 28th. During the time when he was not working, this employee did not report to the Vancouver shortage.
[76] 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.
[77] 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. 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 June16th to July 6th and from July 23rd to August 8th. He has another break on September 1st. 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.
[78] Employee P was laid off at North Battleford on February 25th. On March 19th, he took a week vacation and then he was set up at his home terminal on March 26th. As already mentioned, when an employee is set up at his home terminal, 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 for this employee was submitted. The employee was again laid off on April 24th, 2005. From that date to the rest of the year, this employee moved around within the Saskatchewan zone taking a clearance at other terminals.
[79] 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.
[80] 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. This employee was eventually set up at his home terminal on March 15th, 2005. On April 9th, he was laid off again and then on April 30th, he was given a leave of absence by his trainmaster. That leave of absence lasted until May 13th when he was again laid off. On June 5th, he was again given a leave of absence until June 19th. On June 20th, he was set up in Saskatoon and worked there until July 1st and was laid off again on July 2nd. On July 9th, he was set up again in Saskatoon. On November 4th, he took a leave of absence and then on November 13th, he started training as a yardmaster. He trained as a yardmaster until Christmas and then he stayed on the working board until the end of the year.
[81] Ms. Storms testified that this employee was dodgy and making himself unavailable. She added that when he was set up at this home terminal, he didn't have to report to cover the shortage, but when he was laid off in early April he should have reported, but did not. When asked by CN counsel why he had not been discharged for failing to report, she answered: I can't speak to that. His manager ... could have done something. I don't know exactly why, like I said, I think it just fell through the cracks. Because he was working, we didn't obviously keep very good tabs on him. Finally, on December 25th, 2005, this employee was set up in Saskatoon. On cross-examination, Ms. Storms added that his supervisor thought that he might need this employee, so he was not releasing him.
[82] 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