BC worker's age discrimination complaint dismissed

The British Columbia Human Rights Tribunal has dismissed a worker’s age discrimination complaint related to his vulnerabilities during the COVID-19 pandemic and alleged comments from his colleagues.

Arrow Marine Services is a company operating a shipyard and boat repair business in Richmond, BC. The worker was a marine mechanic employed with Arrow since 2005.

In March 2020, the pandemic hit and the worker – who was 69 years old at the time – went on a leave of absence because he was worried about catching COVID-19, as older people were more likely to get seriously ill or die from the infection. He was off work for three months when, on June 11, Arrow sent him a letter advising that it had implemented COVID-19 safety measures at the workplace that had been approved by WorkSafeBC. Because of this, the company was ending his leave of absence and he was expected to return to work on June 15.

The worker came to the shipyard on the specified date and spoke to Arrow’s division manager. He said that he was still uncomfortable with COVID-19 and he couldn’t take the risk of exposure at his age. He also felt that the company’s safety measures didn’t address his “unique concern,” but he didn’t tell the division manager.

Employer believed worker was retiring

The manager asked the worker if he wasn’t going to return to work and the worker replied in the affirmative, returning his keys and fob. Although the worker intended to return when more safety measures were implemented or the risk of COVID-19 decreased, the manager believed that the worker was retiring. According to the worker, he returned his keys and fob because he was a team player and another employee needed them.

The division manager completed an employee separation and termination form indicating that the worker was retiring but was also eligible to be rehired. The next day, the worker emailed the division manager saying that “anytime there is work in the coming weeks, I would love to come in and do the work” and asking to confirm his employment status.

The manager replied that he understood from their conversation that the worker had retired but “we would gladly have you back as a subcontractor on a job-by-job basis.” The worker responded that he would pick up his personal tools and it had been great to work with Arrow and he was “wishing you and Arrow Marine Services much success in the marine business in the future.”

Arrow sent a record of employment (ROE), although a payroll employee incorrectly put the wrong code – “mandatory retirement” instead of “quit – voluntary retirement.”

‘Age-related vulnerability’

In August, the worker contacted Arrow to say that he hadn’t wanted to permanently resign or retire and was requesting severance pay for constructive dismissal. He clarified that he didn’t return to work because he believed that the company’s safety measures were limited – there were not temperature checks, social distancing, or masks at the workplace.

On Sept. 1, Arrow invited the worker back to work for Sept. 8, but the worker didn’t return. The company sent several other letters inviting him to return, but the worker declined because he believed that the company knew that he wouldn’t accept because it offered no accommodations related to his concerns about COVID-19 transmission “due to my age-related vulnerability.”

The worker filed a human rights complaint alleging that his “advanced age was a factor, if not the only factor” in Arrow’s decision to terminate his employment and the company assumed he was retiring because of his age. He added that he was forced to leave because of the company’s failure to implement adequate safety measures and there were “various instances where younger colleagues disparaged my age explicitly,” such as commenting that he couldn’t work on boats because of his advance age.

Arrow applied to have the complaint dismissed for having no reasonable prospect of success. It argued that the worker voluntarily retired and it couldn’t have known the worker required further accommodation because the worker didn’t request any until months after he stopped coming to work. The company also said it wasn’t aware of any discriminatory comments made by other employees.

Adverse impact

The tribunal noted that the worker would have to prove that he had a characteristic protected by the BC Human Rights Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact. It agreed that the worker’s age was a protected characteristic, meeting the first part of the test.

As for the second and third parts, it was likely that the worker would be able to prove an adverse impact – the loss of employment was an adverse impact, regardless of whether Arrow terminated the worker’s employment or he decided to leave – and the adverse impact the worker alleged was “inherently connected to his personal characteristics given the risks to people of [the worker’s] age at that time in the COVID-19 pandemic,” said the tribunal.

However, despite the fact that the worker was likely to prove prima facie discrimination, the tribunal found that the complaint had no reasonable prospect of success. Arrow successfully argued that it had no knowledge of the worker’s need for further accommodation beyond the safety measures already implemented, which had been approved by WorkSafeBC.

Accommodation a two-way process

While the tribunal recognized that the worker’s age-related vulnerabilities could theoretically establish a connection to his decision to leave, it found that Arrow had no reasonable way of knowing that he required further accommodation. The worker didn’t explicitly communicate his concerns about the company’s precautions until months later, so Arrow was “reasonably certain to prove” it had met its duty of accommodation to the point of undue hardship, the tribunal said.

“Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts,” said the tribunal, adding that the worker’s lack of communication of his concerns about the company’s safety measures didn’t trigger a duty to inquire on Arrow’s part.

The worker also alleged that colleagues had made disparaging remarks about his age, but the tribunal dismissed this aspect of the complaint for being “vague and unparticularized.” There was no detail regarding what was said, when, and by whom, the tribunal said.

The tribunal dismissed the worker’s complaint in its entirety, finding no reasonable prospect that the worker’s claims would succeed at a hearing. It ruled that Arrow had adequately addressed workplace safety concerns and had no indication that further accommodations were required. See Zwanink v. Arrow Marine Services Ltd., 2024 BCHRT 286.