View cases - Stewart McKelvey

34It is, of course, open to the parties to negotiate language within their collectiveagreement to provide possible relief from obligations of employment which wouldotherwise be borne by single parents or, for that matter, married parents withspecial needs. Likewise, Parliament or provincial legislatures could promulgateclear legislation to oblige employers to take such factors into account in theadministration of contracts of employment and collective agreements. But asmatters stand, the Arbitrator can find no discriminatory practice in the policy ofthe Company. It essentially requires all parents, whether single or married, torespond to their core employment obligations regardless of their personal orfamily circumstances. It obviously does occur, as in the case of the grievor, thatextensions of time and other accommodations may be considered where hardpersonal circumstances are demonstrated. But in the end, all employees subject tothe obligations of parenthood are treated the same, without discrimination basedon the status of parenthood. In my view it would be highly inappropriate, whenneither the parties nor Parliament have enacted such protection, for an arbitratorto extract from a provision such as article 115.4 and the phrase « satisfactoryreason » for not responding to a recall, an effective annulment of an employee’smost fundamental collective agreement obligation to be at work, in a mannertantamount to granting a form of super-seniority. If neither the parties themselvesnor Parliament has ploughed any such new furrow, it is plainly not for anarbitrator to do so, bound as any board of arbitration is to apply the collectiveagreement as it stands. The conferring of what, in effect, would be indefinite andqualified partial parental leave is for the parties to negotiate or for theappropriate legislators to promulgate, should that be appropriate or desirable.2010 CHRT 22 (CanLII)(The underlining is mine.)[137] In reading arbitrator Picher, the Tribunal cannot but repeat what it wrote in Johnstone v.Canada Border Services, 2010 CHRT 20, regarding this award.[227] In Whyte the onus was put entirely on the employee to bear any burdenassociated with working for a twenty-four hour, seven day a week enterprise suchas a railway. The decision finds that “in exchange for meeting those onerousobligations railway employees have gained the benefit of relatively generous wageand benefit protections.” This suggests that an employer can discriminate as longas it pays well, and without a definition as to what ‘relatively generous’ means orwhat comparative is being used.[138] On March 27 th , 2006, the Complainant filed her complaint with the CHRC.