View cases - Stewart McKelvey

32“a compassionate stay to remain …in Jasper and protect emergency work.” She forwarded toMr. Marshall all her correspondence with the other managers and added that the letter was“a desperate plea to save my job.” Mr. Marshall did not respond to this letter.[134] On July 4, 2005, CN wrote to the Complainant advising her as follows:This letter will confirm as per Article 115 and 148 of Agreement 4.3 your seniorityrights are forfeited and your services with the Company have been dispensed with.Your employment file is now closed.[135] When she received this letter, the Complainant testified that she was completely“devastated”. She added that she was “deeply offended” that someone would think that hersituation was only a question of “personal choice”.2010 CHRT 22 (CanLII)[136] After her termination, the Complainant asked her Union to pursue a grievance on herbehalf. A grievance was filed and on April 12, 2006, Arbitrator Picher rendered his award whichwas reported in Canadian Railway Office of Arbitration & Dispute Resolution (“CROA”),Case no. 3549. In his award the arbitrator states, 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 factthe grievor 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 previouslydone. A leave of absence connotes a departure from the workplace, virtually forall purposes, whether for an indefinite period or for a period that is fixed. Thoseare not options which were being requested by Ms. Whyte… The grievor in thecase at hand was not asking for an adjustment or accommodation in her work