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33St. John’s and that the grievor had applied for the job posted because he wanted a change and newchallenges (para. 15). The Tribunal also notes that the grievor’s children were 19 years old,starting university, and 15, starting high school, and, as indicated by the arbitrator, although thegrievor’s sons undoubtedly benefited greatly from his regular presence in St. John’s, they requiredno special care from him, and he could make arrangement for their maintenance in his absence.(Para. 141.)[115] CN counsel also made reference to the Ontario Human Rights Tribunal’s decision inWight v. Ontario (No 2), 33 C.H.R.R. D/191, which dealt with an employee who, at the expiry ofher maternity leave, refused to return to work claiming that she was unable to make appropriatedaycare arrangements. Her employment was thereafter terminated on the ground that she hadabandoned her position. In this case the Tribunal found that the Complainant had “steadfastly”refused to acknowledge her employer’s reasonable expectations that she would take whateversteps are necessary to return to work when her maternity leave would expire. In the Tribunalwords: “She had decided she was going to be on a maternity leave until October at the earliest orJanuary at the latest.” (para. 321). The Tribunal added that this was not a case of someone who,despite her best efforts, could not find day care for her child and had to make a choice between herchild and her job. Again a factual situation which is very different from the present one.2010 CHRT 23 (CanLII)[116] Counsel also made reference to Smith v. Canadian National Railway, 2008 CHRT 15,a decision rendered in May 2008, by the then Tribunal Chairperson. The Tribunal fails to see howthis decision can be said to be “comparable” to the present situation. In the Smith case, althoughthe complainant did assert, amongst other grounds, that he had been discriminated against on thebasis of family status, the Tribunal found that this ground of discrimination had not been raised inthe complaint and that no jurisprudence was presented as to whether the facts amounted to familystatus discrimination. (para. 289.)[117] CN’s counsel finally referred the Tribunal to a series of awards rendered by theCanadian Railway Office of Arbitration (“CROA”). Although interesting, all the CROAdecisions are founded on their particular facts and do not help us in the determination of theproper test to follow in this case.