Canadian National Railway Wants To Know If “Family Status” Is Valid Reason Not To Relocate
Republished with permission from ReduceYourWorkersComp.com
Canadian National Railway (CN) is asking the Federal Court of Canada to conduct a judicial review of a human rights decision which found that the railway discriminated against three employees on the basis of family status.
According to Canadian OH&S News, CN spokesman Mark Hallman confirms that the company has filed a notice of application with the court following the Canadian Human Rights Tribunal's (CHRT) decision in late September. (WCxKit)
In that ruling, CHRT member Michel Doucet ordered that former worker Cindy Richards be reinstated after she was terminated in July of 2005 for refusing to accept a work assignment to Vancouver.
At the time, Richards – who lived in Jasper, Alberta and had primary custody of her two children, aged 10 and 11 – argued that she could not legally leave Alberta without providing 90 days written notice of the move as part of her custody agreement.
The decision – and related CHRT rulings affecting two other Jasper-based workers – resulted in the reinstatement of the three workers, with lost wages and benefits, Hallman confirms, noting that all three cited "family reasons" for being unable to relocate to Vancouver.
"We, the railway, accommodated the three employees by granting them four months to make arrangements to report to Vancouver instead of the 14 days as provided under the collective agreements," Hallman says. "Nevertheless, the accommodation was not satisfactory for the complainants."
The tribunal ruled that "the evidence clearly establishes that CN was not sensitive to [Richards'] situation. It did not answer her many requests for some form of accommodation and did not even meet or contact her to discuss her situation, even though its own accommodation policy directs that the employee be met as a first step in the process."
In addition to the reinstatement, Doucet ordered CN to review its accommodation policy as it relates to family status. The tribunal also awarded Richards compensation for lost wages since 2006, $15,000 in compensation for pain and suffering and $20,000 for CN's "willful or reckless conduct."
In challenging the ruling, Hallman contends that CN believes the tribunal "applied the wrong test" to determine an employer's duty to accommodate based on family status.” If unchallenged, the precedent set by the rulings could make it difficult for CN to manage its work force effectively," he states. "We are a 24-hour-a-day, seven-day-a-week operation and we have to be able to deploy our work force to meet the transportation needs of our customers."
Richards was hired by CN in 1989 and was on layoff status with her employer in 2005. By February of that year, CN was experiencing a severe shortage of employees in its Vancouver terminal, while the Jasper terminal was in a "surplus situation," Doucet writes. To maintain its operations, CN decided to recall laid-off conductors to protect the shortage affecting the Vancouver terminal.
During this process, "CN had not hesitated to 'accommodate' some employees who were recalled to cover the shortage in Vancouver because of a sick parent," Doucet notes. "But without inquiring into the nature of her request, they decided that the complainant's situation did not qualify as one requiring accommodation. CN's conduct and nonchalant attitude towards her situation was disturbing."
Hena Singh, an associate with Rubin Thomlinson LLP in Toronto, claims that case law considers family status as that of "being in a parent-child relationship," whether the "parent" is biological or otherwise.
With regards to accommodation, Singh says that there is a "reasonableness component" to consider, and employers should continuously attempt to accommodate. "It's not that they've done one thing and that alleviates their requirement to continue to accommodate her," Singh commented. "The reasonableness of this is that she has to go to court to continue working." (WCxKit)
Singh adds that the way the law is developing is that "if there is some unusual circumstance that is now a change… that is causing you to require an accommodation, an employer needs to accommodate to the point of undue hardship."
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.comor 860-553-6604.
Disclaimer: WorkersCompensation.com publishes independently generated writings from a variety of workers' compensation industry stakeholders. The opinions expressed are solely those of the author and do not necessarily reflect those of WorkersCompensation.com.