View cases - Stewart McKelvey

31[127] CROA No. 3549 refers to the arbitration award in the Kasha Whyte matter. In this award,the arbitrator stated, inter alia :In this grievance the Union does not plead any obligation of accommodation to thegrievor under the provisions of the Canadian Human Rights Act, nor any otherlegislation. It submits that, in effect, the Company unreasonably failed to providethe grievor with a leave of absence to allow her to avoid the recall to Vancouver byreason of her personal circumstances.[…]After a careful review of the facts, the Arbitrator has considerable difficulty withthe submission of the Union. Firstly, I must agree with the Company that in fact thegrievor did not request a leave of absence. What she sought was a form ofsuper-seniority which would allow her, unlike other employees, to remain laid offat Jasper, with no obligation to protect work elsewhere, while continuing to receiveperiodic calls to work from the emergency list at Jasper, as she had previously done.A leave of absence connotes a departure from the workplace, virtually for allpurposes, whether for an indefinite period or for a period that is fixed. Those arenot options which were being requested by Ms. Whyte… The grievor in the case athand was not asking for an adjustment or accommodation in her work schedule. Shewas asking, in effect, for relief against one of the most fundamental obligations ofthe collective agreement, namely the obligation to protect work on her seniorityterritory in the event of a shortage of employees at any location.2010 CHRT 24 (CanLII)[…]I would have some difficulty in concluding that the Company was unreasonable orarbitrary in refusing to effectively grant to the grievor an amendment of hercollective agreement obligations which might extend indefinitely, perhaps as longas ten years, while she would continue to have the special protected status as anemployee who could only be compelled to work in Jasper.[…]This grievance brings to the fore what must be recognized as a constant in anyemployment relationship, namely the tension between personal and familyobligations and obligations to one's employer. Myriad circumstances mightinfluence an employee's personal or family obligations: care for a child, care for anaged parent or another close relative or care for a spouse with a serious medicaldisability. Other personal circumstances might include parole or community serviceobligations after sentencing, close involvement with a church or social group,civic volunteering or competitive sports activities, to name but a few.