Teamsters Canada Rail Conference

Human rights tribunal mulls case of 16-year employee fired for refusing to relocate

Kasha Whyte was devastated the day she was fired from her job as a CN Rail conductor.

"It was pretty brutal. That was my career and it was over just like that," she said last week. "There wasn't even an investigation. I didn't get to talk to anybody. We just got form letters."

Whyte, a 16-year CN employee, was one of four Jasper women fired by CN in 2005 for refusing to accept a temporary assignment to Vancouver. Whyte and Cindy Richards, both single moms who cited family reasons for their inability to transfer, have taken their case to the Canadian Human Rights Commission in a bid to get their jobs back.

A commission tribunal headed by Michel Doucet wound up hearings in Jasper a couple of weeks ago. It is expected to be several months before a decision is announced.

Whyte, 45, is hoping for a landmark ruling that protects Canadians from being fired for refusing transfers when they have legitimate family obligations that prevent them from moving.

"There are a lot of eyes on this case to see what happens," she said.

"It is interesting because you can't be fired if you have a disability, you can't be fired if you're pregnant, but this is all new ground that hasn't been explored."

Whyte said she was travelling back and forth between Jasper and Edmonton seeking treatment for her sick boy when she got word from her employer that she was needed to cover the staff shortage in Vancouver. She had been awaiting recall after a routine layoff, but she didn't think she was in any position to move for an unspecified period with her six-year-old son struggling with respiratory problems.

She wrote to CN's senior manager of labour relations asking to be excused from the transfer, citing the fact that she didn't want to interrupt her son's schooling and living arrangements. She also feared moving her son to B.C. could trigger a custody battle with the boy's father.

She eventually received notice that she was being granted extra time to report, but she still had to be in Vancouver in a couple of weeks.

Whyte wrote another letter setting out in detail her son's medical problems and she got her union to lobby on her behalf. The pleas won a few months reprieve.

She wrote more letters, made numerous phone calls and requested a meeting to seek relief on compassionate grounds, but she was advised only that if she didn't report by a specified date, she would forfeit both her seniority and her employment. She hoped it wouldn't come to that.

"My son was really sick and we were looking at surgery and there was no way I could leave him."

Whyte said she had accepted short-term transfers before. She had worked temporarily to cover shortages in St. Louis for six months in 2002 and in Tucson, Ariz., for five months in 2003. For those trips, she packed up her son, who was healthier at the time, and his grandma.

While CN refused to excuse her and Richards from going to Vancouver, they accommodated five other employees who were men who didn't want to take the transfer, she said.

"They all got to stay at home."

CN and union officials declined to comment on the case while a tribunal decision is pending.

Richards, who was divorced with custody of two children aged 11 and 12, also appealed to CN to avoid the transfer to Vancouver.

She sought a compassionate leave of absence, based on a court order that required her to keep her children in Alberta.

Both women grieved the dismissals through their union, but an arbitrator found against them in 2006. "There is nothing in the collective agreement to suggest that the company must carefully weigh the personal and family obligations of an employee," the arbitrator wrote in his decision.

Whyte had a job working as a waitress in Jasper, but she eventually found other employment that allowed her to be at home with her son during evenings and weekends.

She believes the decision to dismiss her was "cold-hearted and callous.

"It's sad to say, but the whole company has just turned into this brutal machine that doesn't care."

People have asked her why she wants to go back and work for CN. She said the money was good--conductors earn six figures annually-- and she really loved her job.

As the conductor on a freight train, she would make runs to Edmonton, Kamloops and Prince George and was responsible for picking up and dropping off cars from the train.

A resident of Jasper for 22 years, she said she has the support of her co-workers, many of whom attended the human rights commission hearings from September through to mid-November.

She hopes the tribunal will rule in her favour.

"I know in my heart they were wrong, completely."

" I can't choose between my child and my job."