'Being a small business doesn’t alleviate you from… the obligation not to discriminate'
A small employer must pay a worker $10,000 in general damages for harassment and bullying after the worker suffered two workplace injuries, the New Brunswick Labour and Employment Board has ruled.
“It’s a good lesson on what not to do when you're an employer with somebody who goes out on workers’ compensation, or on any form of disability leave, and comes back to work with some restrictions,” says Jessica Bungay, an employment lawyer and partner at Cox and Palmer in Fredericton.
“I know a lot of smaller employers find it challenging to deal with medical restrictions and absences, but being a small business doesn’t alleviate you from the duty to accommodate and the obligation not to discriminate against people on the basis of disabilities.”
Fall from ladder leads to workers’ compensation
Fundy Roofing is a roofing contractor in Saint John, NB. The worker was employed with Fundy as a roofer installing roofing products on residential and commercial buildings since 2004. He worked from early spring to December with a layoff during the winter months. Each year, Fundy rehired him in April.
On Aug. 10, 2017, the worker fell off a ladder onto cement 16 feet below, sustaining a concussion and a spine injury with chronic back symptoms. He had to undergo rehabilitation and received workers’ compensation benefits from WorkSafeNB. Fundy laid him off in December as usual.
In May 2018, Fundy rehired the worker as usual. The worker met with his WorkSafeNB case manager and occupational therapist to discuss a return to work with modified duties, but Fundy’s owner, Mark Dugay, didn’t attend despite being invited. WorkSafeNB told the worker to attend work on May 7 for four hours as part of his gradual return to work, with restrictions of not climbing ladders or going onto a roof.
Harassment and bullying at work
According to the worker, over the next few weeks Dugay - with whom the worker had a good relationship before the injury - frequently yelled at him in front of other employee and said things like he should have gone on employment insurance instead of workers’ compensation, and Fundy should never have hired him in the first place. He also belittled the worker in front of co-workers with comments such as “you are useless” and “you should be up on a ladder.”
This treatment caused the worker to suffer from anxiety, sleeplessness, and depression. It also made him feel that going on workers’ compensation benefits “was the worst thing I ever did” and it was his fault that he fell off the ladder.
The worker continued to perform modified duties until June 6, when he suffered a serious crush injury to his left thumb. He once again went off work, received workers’ compensation benefits, and participated in the WorkSafeNB rehabilitation program. He soon returned to work with light duties, but Dugay resumed yelling at him with comments such as “how much longer do I have to put up with you” and telling him to get on ladders and up on roofs or he would be useless.
The worker underwent surgery in September and remained off work until the December layoff. He met with his case manager and occupational therapist in early 2019 and they deemed him physically able to perform the majority of his pre-accident job duties. Once again, Dugay was invited but didn’t show up.
That spring, the WorkSafeNB case manager told the worker that there was no work for him at Fundy because Dugay didn’t want him back. WorkSafeNB terminated his benefits on April 8, 2019, because the main cause of his inability to work was the unavailability of work. Later that spring, the worker found a job with another roofing company.
Disability discrimination complaint
The worker filed a human rights complaint alleging that Fundy discriminated against him in employment. He argued that he was bullied and harassed at work and he wasn’t rehired because of his work-related physical disability.
Three different WorkSafeNB case managers reported that the worker was capable of returning to his job in spring 2019, but Dugay was unco-operative with a return-to-work plan and didn’t want to bring the worker back because he would “get hurt again” and there was “no work for him to go back to.”
Dugay argued that the worker never approached him about returning to work and assumed that he didn’t want to work for him anymore. He also said that he wasn’t sure there would be work for the worker because he was considering downsizing or “maybe retiring.”
Dugay also denied telling the worker to climb ladders while he was on modified duties or making any bullying or belittling comments, saying they barely spoke because the worker was working fewer hours.
The board referred to the three-part test for prima facie discrimination – the worker has a characteristic protected from discrimination under human rights legislation, he experienced an adverse impact, and the protected characteristic was a factor in the adverse impact.
Adverse impact after failure to rehire
The board noted that Fundy rehired the worker each spring since 2004, so the company’s failure to rehire him in 2019 was an adverse impact. In addition, there was no doubt that the worker had a physical disability from his work-related injuries, establishing the first two elements of the discrimination test, the board said.
The board found that the worker’s version of events was credible, particularly since it was consistent with the evidence from the WorkSafeNB case workers and his physiotherapist. Dugay, however, was vague and unsupported in many details, particularly with regard to whether he said there was no work and his intentions with the business.
“The worker testified with respect to the specific interactions and the comments that were made to him, and he had several witnesses from WorkSafeNB whose testimony basically corroborated what he was saying with respect to not being rehired in the 2019 season,” says Bungay. “Conversely, the owner didn't really deny that he may have alluded to there not being work for [the worker], although there was no evidence to substantiate that he was allegedly retiring or downsizing.”
Dugay’s argument that the worker didn’t contact him directly about available work at Fundy was an attempt to shift the blame and further hurt his credibility, says Bungay.
“The board accepted that it was logical that once the worker was told by WorkSafeNB that the employer had reported there was no work for him, it wouldn't make sense for him to reach out and contact them about work,” she says. “WorkSafe is trying to facilitate things as the intermediary and communicating with the employee the information they receive, and it's perfectly reasonable for the employee to rely on that information.”
Bullying related to disability
Given the credibility findings, the worker established that Dugay treated him poorly because of his physical health issues, and those issues were also the reason Fundy didn’t take him back in 2019, as indicated by Dugay’s comments to WorkSafeNB that he would get hurt again. This established the third part of the discrimination test, the link between the worker’s disability and the adverse impact, said the board.
The board noted that the worker suffered from depression, sleeplessness, anxiety, and stress as a result of the bullying and harassment at work and it accepted the worker’s testimony that he felt humiliated and worthless after returning from his medical leave and later his termination. This warranted general damages for injury to his dignity, feelings, self-respect, and self-worth, said the board.
Fundy Roofing was ordered to pay the worker $10,000 in general damages and Dugay was ordered to participate in a one-day human rights training course on the duty to accommodate. The board didn’t award any damages for lost wages because the worker found employment with another roofing company at the time he would have rejoined Fundy.
If Fundy had legitimate, non-discriminatory reasons for not bringing back a long-term seasonal employee, the best practice would be to provide the employee with as much notice as possible, according to Bungay.
“Notice should be given, ideally, when the employer becomes aware of the change - so that could be the end of the season in early winter, when they would typically do their layoffs, if they know that there’s going to be changes the next season,” she says. “And best practice would be written notice advising them that they're not going to be rehired for the next season.”
“When you have a pattern of rehire like this worker – who had been working there for 15 consecutive years - there would be legal liabilities that would arise if you don't rehire them, because they are treated like an indefinite employee and are entitled to notice or pay in lieu of notice of their termination.”
See East v. Fundy Roofing (Fundy Roofing Ltd. and Dugay, 2023 CanLII 128825.
