BC worker's complaint of discriminatory termination dismissed by tribunal

The British Columbia Human Rights Tribunal has granted an employer’s application to dismiss a worker’s discrimination complaint on the basis that the complaint had no prospect of success.

Submitting such an application is advisable for employers if they had legitimate non-discriminatory reasons for letting the worker go or taking other action against them, according to Trevor Thomas, co-founder and partner at Ascent Employment Law in Vancouver.

“If you can demonstrate that a project was over, that you've had to make a reduction in your workforce, or if the work is seasonal, for example, and you had to let somebody go - circumstances like that, where you can actually point to some evidence to give an alternate reason why you had to let this person go,” he says.

The worker was an electrical apprentice for Allwest Electric, an electrical contracting company in Port Coquitlam, BC. He started working for Allwest in December 2016.

In October 2018, the worker injured his right wrist at work. The injury required medical treatment and he provided a doctor’s note limiting him to light duties for three weeks, which Allwest provided. After three weeks, he performed his regular duties.

The worker filed a claim for workers’ compensation with WorkSafeBC, which was accepted. He underwent physiotherapy for his wrist and, in January 2019, he provided an occupational health and safety medical form indicating that he had to avoid repetitive motions for 30 days.

Layoffs for lack of work

In June 2019, several of Allwest’s projects neared completion. The worker worked on a large project that was one of the largest the company had ever tackled, so when it finished there was no work for several of its electricians and apprentices. As a result, it started laying off employees.

From June to October 2019, Allwest laid off about 12 per cent of its workforce. Once the worker’s project finished, the company informed him that it had “no suitable projects to which to re-allocate.” The worker was laid off on Oct. 11 and Allwest issued a Record of Employment indicating that there was a shortage of work.

Allwest laid off 39 employees in total for shortage of work, including 12 who were on the worker’s project.

According to the worker, co-workers told him that Allwest had hired new, younger electrician apprentices with lower pay. He filed a complaint of discrimination, alleging that Allwest ended his employment because of his wrist injury, which was a physical disability.

Allwest denied the allegation, maintaining that the worker was laid off due to a shortage of work and his physical disability was not a consideration in the termination decision. It filed an application to dismiss the worker’s complaint on the basis of having no reasonable chance of success at a hearing.

New allegation related to accommodation

The worker then added to his claim, accusing Allwest of failing to reasonably accommodate his disability after his injury and alleging that he was “a target for humiliation and bullying at work.”

The tribunal noted that, for a complainant to amend their complaint, they have to make a separate application so the respondent was aware of the complete allegations and their defence wasn’t a “moving target.” In this case, the worker did not apply to amend his complaint or present a reason why it would be fair to add new allegations. The tribunal did not allow the amendment and considered only the allegation of discriminatory termination of employment.

In addressing Allwest’s application, the tribunal noted that the BC Human Rights Code allows it to dismiss a complaint if it has no reasonable prospect of success in order to save the time and expense of a hearing. To avoid such a dismissal, the complainant only has to show that they have enough evidence to take their complaint “out of the realm of conjecture,” said the tribunal.

The tribunal also noted that for there to be disability discrimination, three elements are required – a disability, an adverse effect, and a nexus between the disability and the adverse effect. In this case, the first two elements were clearly present – the worker’s wrist injury was a physical disability and his layoff was an adverse effect, the tribunal said.

The tribunal found that Allwest presented convincing evidence that several of its projects came to an end and the company had to lay off several employees, not just the worker. In fact, Allwest had documents that showed that the worker was the 29th worker to be laid off out of 39 in total, including 12 on the same project as him. All of these employees were laid off for lack of work.

“[The worker] was one of the last few employees to be let go and he was one of a number of people who got let go, so he wasn't singled out as the only person who was affected by what was happening,” says Thomas. “That at least gives an appearance that they were trying to keep him on as long as possible - it's all demonstrative of the employer making an effort to keep this guy employed, despite his injury, for a period of 12 months.”

No replacements

As for the worker’s claim that Allwest hired new employees with less experience and for less pay after his layoff, he didn’t provide any evidence supporting that contention and Allwest denied it. Allwest provided evidence that it hired one apprentice after the layoffs, but that apprentice had a different rating and skillset than the worker. There were no apprentices of the worker’s level on the payroll between October 2019 and March 2020.

The tribunal also found that the worker continued to work for one year after his wrist injury, so it made less sense for Allwest to end his employment because of the injury after continuing to employ him for that long.

That timeline was key to Allwest’s application to dismiss the complaint, says Thomas.

“I appreciate that not all employers can do this, but [Allwest] brought the [worker] back for one year following his wrist injury, and after that year is when the layoff occurred,” he says. “They put some time and distance between the injury and the layoff - that's one of the things that the tribunal typically looks for is the temporal connection between when an injury occurred and when the adverse treatment occurred.”

The tribunal determined that it was reasonably certain that Allwest would be able to prove that the worker’s layoff was for non-discriminatory reasons, leaving the worker’s complaint with no reasonable prospect of success. The worker’s complaint was dismissed.

Application to dismiss complaint

The application to dismiss a discrimination complaint is a powerful tool for employers, according to Thomas.

“Number one, it’s an opportunity to resolve the matter at an early stage of the process, will save time, cost and resources,” he says. “Number two, sometimes the complaint doesn't make a lot of sense and is somewhat ambiguous in terms of what the actual complaint is - the application to dismiss process is an opportunity to gather some more information, so even if the employer is ultimately not successful in their application, they can still obtain more information to help them understand the complaint and determine their strategy going forward to deal with this complaint.”

Regardless, Thomas suggests that it’s a good idea to be thoughtful about decisions affecting employees with a disability.

“Often, employers will react quickly when they want something done, but when you're dealing with people who have some sort of disability - whether it's physical, mental, or really anyone who falls within the protections of the Human Rights Code - it's always good to pause and ask yourself, as the employer, could the actions that I'm about to take or the decision I’m about to make have bigger repercussions?” says Thomas. “And it's good to get, we call it, a second sober thought about making those decisions and taking those actions, because sometimes you've got blindspots and might not recognize that if you let this person go, there's potentially a human rights complaint that could follow.”

See Emadi v. Allwest Electric Ltd., 2023 BCHRT 107.