Worker didn't disclose disability in job application, fired for poor performance
The British Columbia Human Rights Tribunal has dismissed a worker’s allegation of age discrimination in his termination of employment but has allowed his application to continue to a hearing based on a disability discrimination allegation.
The worker immigrated to Canada from India in 1981. His first language was Punjabi and he had a limited ability to speak English. He worked as a commercial janitor for a third-party company that was contracted to do maintenance at stations along the Skytrain transit route in BC’s Lower Mainland.
In December 2016, the worker was hit by an impaired driver while at work, causing serious injuries to his neck and back. He had to go off work for eight months while he rehabilitated from his injuries and, when he went back to work, it was on a gradual basis with “informal lighter duties.”
The worker was diagnosed with soft tissue injuries in his neck and lower back and whiplash. He wasn’t restricted from doing his job duties, but his efficiency and durability were affected by pain flare-ups. Due to his language barrier, his doctor was unable to identify specific functional restrictions, but the worker was given medication for his chronic pain.
On Nov. 30, 2019, the company’s janitorial contract for Skytrain stations expired and it terminated the worker’s employment.
No disclosure of disability
The worker learned that Bee-Clean Building Maintenance was awarded the new contract to maintain Skytrain stations, so he applied for a job with that company. The employment application included a questionnaire about the applicant’s ability to perform certain tasks and a space to disclose any disability or accommodation. The worker filled out the questionnaire by indicating that he could complete all tasks required in the job without limitations or accommodation and he didn’t indicate that he self-identified as a person of colour.
Bee-Clean offered the worker a job as custodial team lead and the worker accepted. He started on Dec. 1 on a three-month probationary period.
On Feb. 19, 2020, while the worker was still on probation, Bee-Clean terminated his employment. The company had observed substandard performance, refusal to comply with directions from management, leaving work early, sleeping at work, refusing to perform certain deep-cleaning tasks, and refusing to comply with policies and procedures. The company determined that the worker was unsuitable for continued employment.
The worker made a human rights application alleging that Bee-Clean terminated his employment based on his age and physical disability. He claimed that the company was aware of his injuries sustained from the 2016 incident and his dismissal was part of a practice of terminating older staff. He explained that he didn’t report his disability on the application questionnaire because he didn’t understand it with his limited English, and some of his performance issues were related to his disability but he couldn’t communicate them to Bee-Clean.
Application to dismiss complaint
Bee-Clean made an application to dismiss the complaint on the grounds that there was no reasonable prospect of the worker being able to establish at a hearing that his injuries constituted a physical disability under the BC Human Rights Code during his employment with Bee-Clean, or that his protected characteristics were a factor in the termination decision. It claimed that it wasn’t aware that the worker had any physical disability, so there couldn’t be a nexus between it and his termination.
In response, the workers sought to amend his application to include the grounds of race, colour, and ancestry as discriminatory factors in his termination. He alleged that his limited fluency in English was a factor in the company’s adverse treatment because it didn’t make reasonable efforts to communicate with him in Punjabi during his employment. This resulted in him unable to fully communicate his pain and limitation to the company and the company didn’t reasonably inquire about his physical limitations in his primary language.
The tribunal found that the worker’s original application didn’t contain any alleged facts or allegations that would support that his race, colour, or ancestry were factors in the termination decision, such as that Bee-Clean was required to communicate with him in Punjabi. In addition, the new allegations would broaden the scope of the complaint in a manner that would create “shifting goalposts” for Bee-Clean’s defence and would be procedurally unfair to the company the tribunal said.
The tribunal dismissed the worker’s application to amend his complaint, although it acknowledged that it could consider the worker’s evidence about his language barriers and his ability to communicate his need for accommodation.
Duty to inquire
As for the application’s reasonable prospect of success, the tribunal noted that the worker would have to prove that he had a physical disability during his employment with Bee-Clean and his disability and/or age was a factor in the termination decision. The medical evidence indicated that the worker was diagnosed with chronic pain and soft tissue injuries that were ongoing and required pain management. Although the worker didn’t report his condition on the application questionnaire, his reason of the language barrier was a reasonable explanation, said the tribunal in finding that the worker had some prospect of establishing that he had a disability.
The evidence indicated that Bee-Clean was aware of the accident in which the worker was injured, as the worker’s lawyer had requested a copy of his personnel file and referenced the accident. Although the worker may not have disclosed his injury, his performance issues raised the possibility of a disability for which the company had a duty to inquire, the tribunal said in finding that it wasn’t reasonably certain that Bee-Clean could prove that it terminated the worker for solely non-discriminatory reasons.
As for the worker’s age, the worker provided no evidence other than that other older employees were also terminated. However, the company provided records that 23 other employees were dismissed around the same time, and some were as young as 22 while some employees who remained employed were as old as 76. As a result, it was reasonably certain that Bee-Clean would be able to prove that age was not a factor in the worker’s termination.
The tribunal dismissed the worker’s allegation of discrimination on the basis of age, but it allowed the application alleging discrimination based on disability to continue to a hearing. See Heer v. Bee-Clean Building Maintenance, 2024 BCHRT 16.
