You make the call
This edition of You Make the Call involves a foreign worker who claimed his employer discriminated against him on the grounds of physical disability and place of origin.
Sergiy Zabara was a Ukranian who came to Canada under the Temporary Foreign Worker Program. He was hired as a mushroom harvester for All Seasons Mushrooms, an organic mushroom producer based in Langley, B.C., in October 2013 at its Crossfield, Atla., farm. As an agricultural worker, he often worked long hours at different times — sometimes 16 to 18 hours per day, much of it on a ladder picking mushrooms. Agricultural workers are exempt from overtime provisions in the Alberta Employment Standards Code due to the seasonal nature of the work.
According to Zabara, other workers told him that the company didn’t like Ukranian employees and they often worked longer hours than Canadian and Asian employees. He also felt he was assigned to areas where picking was more difficult, although all workers were required to work from the floor up to the upper tiers of their section.
In March 2015, Zabara began experiencing medical problems. After visiting his doctor, his supervisor accommodated him with reduced hours and duties. However, a new supervisor arrived in September 2015 and his accommodation ended.
Zabara provided a medical note authorizing medical leave from June 15 to Sept. 15, 2015. All Seasons Mushrooms agreed to accommodate his leave and Zabara returned to the Ukraine.
In September, Zabara returned from the Ukraine but he told his supervisor that he had stomach, kidney and liver pain that made him unable to work the long days on the ladder. He also said he had high blood pressure and asked to work on the floor instead. The supervisor refused as he didn’t provide medical information supporting his request.
On Dec. 3, Zabara told his supervisor that he could no longer work 16 to 18 hours per day and his family doctor said he should be limited to eight hours per day and receive two days off per week. Around this time, he also contacted provincial health and safety authorities, leading to an inspection of the farm on Dec. 14.
The same day of the inspection, Zabara injured his back while working on a ladder. However, before he could inform anyone, the company terminated his employment. It said that he wasn’t suitable for continued employment and provided him with pay in lieu of notice under the code along with return transportation to the Ukraine, as required under the Temporary Foreign Worker Program.
Zabara filed a human rights complaint claiming that All Seasons Mushrooms discriminated against him by assigning him longer hours and worse picking areas because he was Ukranian, creating a toxic work environment. He also claimed that he was fired because he couldn’t work long hours, which was discrimination related to his physical disability.
You Make the Call
Did the company discriminate against the worker?
OR
Was the termination reasonable?
IF YOU SAID there was no discrimination, you’re right. A human rights officer investigated Zabara’s complaint and found no concrete evidence that Zabara had been subjected to comments in the workplace regarding his place of origin or race. In addition, the company accommodated Zabara’s medical leave when he provided a doctor’s note supporting it. It refused to accommodate him with modified duties after he returned from his medical leave as there was no medical information supporting. Zabara only provided a doctor’s note in early December. The human rights officer also noted that Zabara didn’t provide any details on his accusations of discrimination based on his origins and he hadn’t filed any harassment complaints. The complaint was dismissed.
Zabara appealed to the Alberta Human Rights Tribunal and provided additional medical documentation he obtained during his medical leave and during treatments after his dismissal, but the tribunal found that none of it had been provided to All Seasons Mushrooms. The tribunal agreed that the company accommodated Zabara’s medical leave after he provided medical information but it had no information supporting the need to accommodate after he returned. It also agreed that the allegations of discrimination based on Zabara’s place of origin and race were “primarily based on conjecture and supposition” and upheld the dismissal of the complaint.
For more information, see:
- Zabara v. All Seasons Mushrooms Inc., 2021 AHRC 53 (Alta. Human Rights Trib.).
