View cases - Stewart McKelvey

30[125] On February 16 th , 2006, Mr. Marshall answered :Upon receipt of your letter, I reviewed your file and it is my understanding that yourservices were terminated under the terms of the collective agreement as a directresult of your failure to comply with the terms and conditions of that collectiveagreement. I appreciate the fact that you are now ready, willing and able to workand reinstatement would be considered provided you agree to abide by the termsand conditions of the collective agreement. I cannot, however, guarantee that youwould work exclusively in Jasper. Your work location would be determined byyour seniority and our work force requirement. Further, I understand that youcurrently have an active grievance regarding your termination and reinstatementwould be conditional upon withdrawal of the grievance.2010 CHRT 24 (CanLII)[126] Following her termination, the Complainant requested that her Union process hergrievance to arbitration. On April 12 th , 2006, Arbitrator Picher rendered his award which wasreported in Canadian Railway Office of Arbitration & Dispute Resolution (“CROA”), Caseno. 3550. In his award the arbitrator states, inter alia:For the reasons more exhaustively explained and expressed in CROA & DR 3549,the Arbitrator cannot accede to the position advanced by the Union. There isnothing in the collective agreement to suggest that the Company must carefullyweigh the personal and family obligations of an employee and that those obligationsmight effectively trump the cornerstone rights and obligations relating to seniorityand the order of recall of employees in a bargaining unit as provided for under thecollective agreement. There is no responsible basis upon which a board ofarbitration can effectively conclude that an individual’s personal circumstances notonly explain their failure to report for work upon a recall, but excuse themindefinitely, perhaps for years, from the same work obligations as apply to otheremployees, including other single parents, or married parents with comparablefamily obligations. In effect, what the grievor requests would be tantamount to anamendment of the collective agreement by the Arbitrator and the creation of a formof super-seniority based on personal circumstances. For reasons touched upon inthe prior award, there is nothing in the collective agreement which wouldcontemplate the possibility of any such result. On the contrary, the Arbitrator isbound to apply the seniority and recall provisions of the collective agreement asfashioned by the parties themselves. In addition, it should be noted that the Uniondoes not seek, through this grievance, relief for any alleged violation of theCanadian Human Rights Act.(The underlining is mine.)