Employer provided non-discriminatory reasons; worker had little evidence linking dismissal to disability
The British Columbia Human Rights Tribunal has dismissed a worker’s application alleging that his former employer and his former union both discriminated against him because of a physical and mental disability, as having no reasonable prospect of success.
The worker was a carpenter for Aecon-Flatiron-Dragados-EBC Partnership at the Site C Clean Energy Project, a construction site for a dam and hydroelectric generating station in northeastern BC.
The worker had type 2 diabetes, which required him to have a snack every two to three hours. However, he didn’t disclose his condition in his new hire orientation form, where there was a place to list medical conditions that could impact his ability to safely perform his work.
In March 2021, the worker was assigned to a crew under a new foreman with his first break not scheduled for four hours. He told the foreman that he had diabetes, but he didn’t mention it to management. According to the foreman, the worker didn’t tell him about his condition.
Bullying, harassment allegations
According to the worker, the foreman also bullied and harassed him by calling him names, yelling him to get back to work, and following him into a change room to watch him change. The foreman denied all of these allegations. The worker made an internal harassment complaint and Aecon collected witness statement from other employees. No one witnessed the alleged harassment and there was no change room – the worker had been changing in an open coat room connected to the lunchroom.
Aecon terminated the worker’s employment on May 29, 2021. Aecon pointed to previous discipline for the worker’s repeated unauthorized use of his cellphone during work, violations of safety rules observed by the foreman and other employees, disruptive calls to the project safety manager and HR manager – with the latter blocking his calls – inappropriate and threatening communications with management, and concerns from other employees that he was difficult to work with.
The worker filed a human rights application alleging discrimination by Aecon on the basis of mental and physical disability. He claimed that the company failed to accommodate his diabetes by refusing more frequent breaks, the foreman harassed him, and his employment was terminated because of his complaint. The worker also alleged that the union discriminated against him by failing to assist with accommodation, agreeing with the employer’s discipline, and withdrawing a grievance regarding his termination.
Both the employer and the union denied the allegations and applied to have the complaint dismissed, arguing it had no reasonable prospect of success.
Physical, mental disability
The tribunal noted that the burden was on the worker, as the complainant, to prove that he had a physical or mental disability, was treated adversely in employment, and his disabilities were a factor in his treatment. It accepted that the worker might be able to prove he had type 2 diabetes, but found insufficient evidence to support a mental disability – the worker only referred to harassment and bullying, with no evidence of a connection to a disability.
Regarding the allegation of inadequate breaks, the tribunal found that while the worker might be able to prove that he was adversely affected by the break schedule, Aecon was reasonably certain to provide a defense. There was no evidence that the worker actually disclosed his need for accommodation to management or that the employer was aware of his disability-related needs. Although the worker may have told the foreman that he had diabetes – which the foreman disputed – there was no indication that the worker informed management or even the foreman that he needed more frequent breaks due to his diabetes, said the tribunal.
As for bullying and harassment, the tribunal found that even if the worker could prove that the foreman harassed him, there was no evidence connecting the alleged harassment to his diabetes or a mental disability. The jurisprudence established that causing stress or anxiety does not, in itself, constitute discrimination on the grounds of mental disability, the tribunal said.
The tribunal also found that the worker didn’t explain how his disabilities were a factor in the decision to terminate his employment. Aecon provided evidence of non-discriminatory reasons for the termination, including prior discipline, safety violations, disruptive conduct, and concerns from co-workers.
The tribunal determined that the worker’s complaint against Aecon had no reasonable prospect of success and dismissed it.
Accommodation advice
The tribunal also considered whether the union was a “joint author” of a discriminatory workplace rule or impeded accommodation efforts, or whether it treated the worker adversely in connection with his disabilities. While the worker alleged that the union told him that Aecon didn’t have to accommodate his diabetes and refused to help him seek accommodation, the union denied these statements and provided evidence that it advised him on how to request accommodation. There was no evidence that the worker ever asked for accommodation or that the union impeded such a process, said the tribunal, adding that the worker hadn’t responded after the union advised him on accommodation.
The tribunal also noted that such matters relating to concerns with the union’s representation are within the jurisdiction of the BC Labour Relations Board, not the tribunal.
The tribunal granted the motion to dismiss the worker’s application for having no reasonable prospect of success. See Smith v. Aecon-Flatiron-Dragados-EBC Partnership and another, 2025 BCHRT 126.
