View cases - Stewart McKelvey

49[173] The evidence establishes that Conductors on the railway have an unpredictable workschedule and yet the Complainant had made the necessary arrangements to fulfill the full range ofher duties as a Conductor, including being on a 2 hour call 7 days a week, for work out of Jasper.The only issue for her was that she could not leave her family in Jasper at the time of theVancouver shortage.[174] The Complainant never received any answer to any of her letters. CN’s witnesses testifiedthat parental responsibilities such as child care were not a “satisfactory reason” to not protect ashortage. CN considered that the complainant’s situation did not qualify as requiringaccommodation on the basis of family status under the CHRA. It also considered theComplainant’s situation as a personal choice not to abide by her professional obligations in orderto prioritize other aspects of her life, a situation it referred to as “work-life” balance.”2010 CHRT 24 (CanLII)[175] On cross-examination, Mr. Torchia recognized that the Complainant concerns werelegitimate and that they did deserve accommodation. But, for him what the Complainant neededwas more time to sort out her affairs and that is what he had granted her. He also added that it was“unfair” to conclude that he had not applied CN’s Accommodation Policy: “They [theComplainant, Kasha Whyte and Denise Seeley] had family issues and I accommodated them byextending the time they had to report to Vancouver. They were accommodated to makearrangements. They didn’t and were terminated.” Interestingly, he also added: “In the case of thetwo Complainants [Cindy Richards and Kasha Whyte], I felt that they had “satisfactory reasons”and that is why I granted them an extension of time when I found out about them.” This was notthe position adopted by CN before the arbitrator.[176] The Tribunal concludes that the law simply does not support CN’s view of family status asnot including the Complainant’s situation. The Complainant situation as a single parent of twochildren and the ramifications, as she explained in her various letters, of ordering her toVancouver does bring her within the ground of family status. She specifically requestedaccommodation of CN and had directed her request to CN officials. CN’s witnesses testified thatsuch a request should have been made to the employee’s supervisor who in this case wasColin Pizziol, the trainmaster in Jasper. Unfortunately, Mr. Pizziol was not called as a witness and