Worker hospitalized after seizure, but cleared and discharged
A British Columbia worker’s complaint that his firing was related to a disability has been quashed in the absence of evidence that he had any disability.
The worker was a journeyman plumber for Werner Smith Mechanical (WSM), a commercial and industrial mechanical contractor in Coquitlam, BC, who was hired in October 2019 for a three-month probationary period with an option for WSM to extend it to six months. He didn’t have a written employment contract.
The worker’s role involved travelling to different client locations in a company van to deal with plumbing issues, as assigned by WSM. At the end of his probationary period, WSM exercised its option to extend it for another three months due to performance issues.
The worker sometimes was absent from work, providing reasons such as an abscessed tooth, COVID-19 symptoms, a cough, and an MRSA infection in his legs. He also had absences for which he didn’t give a reason.
Medical absence
On July 13, 2020, the worker told WSM that he was sick and going to the hospital. He later informed the company that he had been hospitalized. The next day, he called and said he was infected with MRSA in both legs. He had also taken a COVID-19 test and needed to quarantine for 48 hours until he received the results.
One week later, the worker called WSM and said that he had a seizure at home that required hospitalization on July 17. His driver’s licence had been taken away until the cause of the seizure could be determined and he completed a follow-up exam at the outpatient centre. He was “cleared of having irreparable damage” and discharged from the hospital a few days later.
The worker remained off work and, on Aug. 12, he texted his supervisor to say that he was feeling better and would call to provide an update on his “situation.” One week later, the worker requested modified duties because he still couldn’t drive and needed someone to take him to job sites. His supervisor said that he would consider it but it might not be possible because of their COVID-19 safety policy – the pandemic was at its height with no vaccines yet available.
On Aug. 26, the worker’s supervisor called the worker and informed him that his employment was terminated due to ongoing performance issues, a slowdown in work due to the pandemic, and their inability to have someone drive him to his assignments due to COVID-19 restrictions.
Disability discrimination alleged
The worker filed a human rights complaint alleging discrimination in employment on the basis of a physical or mental disability – what the worker referred to as a brain injury and an MRSA infection. According to the worker, WSM had terminated his employment when he tried to return to work after an illness.
WSM applied to dismissed the complaint on the basis that it had no reasonable prospect of success because the worker wouldn’t be able to prove he had a disability. The company also argued that it would be able to establish that the termination was solely for work performance, a non-discriminatory reason, and that the worker never advised that he had been diagnosed with or provided evidence that he had developed a disability.
The BC Human Rights Tribunal noted that the worker would have to prove at a hearing 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.
The tribunal also referred to its previous jurisprudence that defined a “disability” as a “physiological state that is involuntary, has some degree of permanence, and impairs the person’ ability, in some measure, to carry out the normal functions of life” and limited their ability to work. The code’s protection extended to people with “temporarily disabling medical conditions,” the tribunal added.
Degree of permanence
The tribunal found that there was evidence, based on the worker’s seizure and hospitalization, that the worker’s condition was an involuntary psychological state, but it appeared that the condition was temporary. The worker was cleared of having irreparable damage a few days after his seizure and he didn’t provide any evidence on the degree of permanence of his condition, the tribunal said.
The tribunal also found there was little evidence on how the worker’s condition affected his functions of life. It was unclear if the worker’s driver’s licence was taken away temporarily pending his follow-up exam or whether he successfully obtained it later.
As for the alleged physical disability – the MRSA infection – the worker didn’t provide any evidence on how this impacted him, said the tribunal. This was an involuntary physiological state, but there was no indication on the degree of permanence or its impact on his ability to carry on the normal functions of life, the tribunal said.
The tribunal determined that there was no evidence taking the worker’s claim of having a physical or mental disability out of the realm of conjecture, which failed to meet the first element of the test for prima facie discrimination. The complaint was dismissed for having no reasonable prospect of success in a hearing. See Greenwood v. Werner Smith Mechanical Inc. and another, 2024 BCHRT 192.
