CPR engineer didn’t agree with railway’s accommodation of his sleep disorder, but options provided were reasonable, says tribunal
A Canadian Pacific Railway worker with a sleep disorder who didn’t like the accommodation options presented to him has had his complaint of discrimination based on disability and family status dismissed by the Canadian Human Rights Tribunal.
Keith Waddle was hired by Canadian Pacific Railway (CPR) in 1986 and became a locomotive engineer at CPR’s Lethbridge, Alta., terminal in 2011. His job duties as an engineer involved driving trains from his home terminal to other terminals in southern Alberta and back.
Waddle was on what was called “unassigned service,” which meant he was required to be on-call during his shifts. He received phone calls from CPR during his shifts with at least two hours’ notice of his start time. Once he arrived for a call, he would drive a train to an away terminal — which could take up to 12 hours — then he would be on call again waiting for the return trip. Assigned service locomotive engineers worked set shifts with no call-out window.
Waddle had some health issues, including osteoarthritis in his knee and pain in his neck and spine, that CPR’s occupational health and safety department was aware of but didn’t affect his ability to work as a locomotive engineer on unassigned service. However, in 2010, Waddle began having difficulty sleeping and increased anxiety while waiting to be called for a shift. This led to him being reported as medically unfit for work 59 times in 2010 and 33 times in the first half of 2011, and two occasions when he fell asleep while driving a train.
Waddle saw a sleep medicine specialist, whom he asked to recommend a call-out window restricted to between 5 a.m. and 5 p.m. The specialist made the recommendation to CPR, though she didn’t know this would still require Waddle to drive a train overnight. Waddle also didn’t tell her the specific hours of his unassigned service. She also indicated she suspected Waddle suffered from circadian sleep rhythm disorder.
After receiving the recommendation, CPR’s occupational health and safety department created a fitness to work assessment form for Waddle that confirmed he could work in a safety critical position such as locomotive engineer with a call-out window between 5 a.m. and 5 p.m., 12-hour shifts, and lifting restrictions. This led to a return-to-work meeting.
At the meeting, Waddle said he wanted his position based in Lethbridge, but CPR rejected this proposal because it couldn’t apply the restrictions at away terminals and such schedules didn’t exist in Lethbridge. The limited call-out window also would cause problems with other employees and safety concerns. Other accommodation options were discussed, such as office work — which Waddle rejected because he couldn’t read well — relocation — Waddle was unwilling to move because he said he cared for his elderly parents in Lethbridge — mechanical engineering positions — Waddle would have to displace a more senior employee — and modified duties in his regular job — rejected because Waddle’s medical restrictions made it difficult to manage the call-out window.
Eventually, Waddle got the sleep specialist to approve having the call-out window restricted only at his home terminal. However, CPR put him in assigned service at the Lethbridge yard and, if necessary, a more senior employee would be bumped to allow Waddle to work those shifts.
Worker disagreed with accommodation options
Waddle called an OHS nurse at the railway and said that he couldn’t work overnight in assigned service at the yard, though he had been open to overnight work at away terminals. His sleep specialist updated his restrictions to allow him to work in the yard with a regular start time with no overnight shifts.
CPR crafted a second return-to-work agreement that limited Waddle to morning and afternoon shifts. It asked Waddle to update his bid-card — which contained information on his seniority and restrictions — to ensure he would get the shifts to which he was entitled, but Waddle failed to do so.
In the fall of 2011, Waddle sought further accommodation including a return to unassigned service. This created difficulty for CPR and the union, as Waddle’s restrictions included his sleep disorder, knee condition, and lifting restrictions because of his back problems. They continued to discuss other accommodation proposals.
In late 2011, the union reviewed Waddle’s medical records and determined his sleep issues were all self-reported to his doctor. It notified Waddle that it couldn’t modify any position in Lethbridge or adjust his seniority “on the basis of your self-reporting of a condition” and suggested he move to Calgary — which Waddle had said wasn’t a possibility because of his obligation to care for his parents.
Waddle filed human rights complaints alleging CPR and the union discriminated against him because of his disability and family status.
The tribunal first addressed Waddle’s claim of discrimination based on family status. While Waddle told CPR and the union that he was responsible for caring for his elderly parents, he didn’t provide any details on what disabilities they had and how much care they needed. He also didn’t provide any evidence as to the nature of the care he provided and whether had investigated alternative care options. As a result, the tribunal determined that Waddle had failed to prove he had a legal responsibility based on his family status and therefore was not discriminated against because of it.
The tribunal then found that Waddle did face prima facie discrimination, as CPR barred him from working in unassigned service because of his disability. In addition, the union discriminated against him when it refused to consider an option of adjusting Waddle’s seniority so he could perform modified work or displace a more senior employee based on its view that his disability didn’t require that accommodation, the tribunal said.
The onus then shifted to both CPR and the union to prove there was a bona fide occupational requirement to support the adverse differential treatment suffered by Waddle. The locomotive engineer position was a safety critical condition that required a level of alertness and cognitive functioning that would be difficult to maintain for someone with a sleep disorder. Waddle’s sleep specialist initially confirmed that he couldn’t operate trains overnight, so CPR’s decision to prohibit Waddle from working on overnight unassigned service was rationally connected to the requirements of the job, said the tribunal.
The tribunal also noted that CPR made extensive efforts at accommodation, which showed it was acting with honesty and good faith, but it could only take it so far given the limitations of the Lethbridge terminal and the potential effects on other employees.
“(Waddle) could not, given the safety critical nature of his work in unassigned services as a locomotive engineer, and given his medical disability, continue to work as an LE in unassigned services from the Lethbridge terminal,” said the tribunal. “The modification of his job as an LE in unassigned service, by adding a 5 a.m. to 5 p.m. call-out window, was inconsistent with the medical restrictions to which he was subjected by his sleep specialist, once he had provided her with all the information she needed to assess the accommodation.”
The tribunal also noted that Waddle failed to facilitate the accommodation process by not providing all the necessary medical information and failing to update his bid-card. He also didn’t initially provide his sleep specialist with all the information about his job.
As for the union, while the tribunal found its attitude towards Waddle was questionable and based on assumptions, it had no liability because Waddle was fully accommodated by CPR.
The tribunal determined there was no discrimination based on Waddle’s disability or family status and dismissed his complaints.
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