Wife discriminated against because of disability after accommodation not sought; husband discriminated against when fired because of wife’s workers’ compensation claim
An Alberta company discriminated against a married couple who worked as contractors when it fired the husband to avoid the costs and responsibilities of worker’s compensation for the wife who had been injured in a workplace accident.
Hans and Joanne Goossen were a husband-and-wife duo who worked as drywall tapers. In October 2008, they were both hired by Summit Drywall Contractors, a commercial drywall contractor in Calgary, to work first at a hotel and then on new towers at the Foothills Hospital. They had previously worked for Summit in 2005 on a short-term project.
According to Hans Goossen, they accepted a slightly lower wage from Summit because they were told there would be work available for them for the next three years if the company was pleased with their work, since Summit had a number of major contracts. There was no formal written contract for the Goossens as they had never worked with one.
Summit set the hours of work for the Goossens and other drywall tapers at eight hours per day, 40 hours per week. The Goossens submitted time sheets separately but were paid biweekly with one cheque for both of them. They supplied their own hand tools while Summit provided drywall supplies and equipment and assigned them locations to work. The company also provided safety training. Summit held safety meetings for all tradespersons at the hospital site once per week.
The Goossens worked at the hotel project until Nov. 20, when Summit told them to go to the hospital project. The site supervisor at the hospital told them they were in charge of the entire third floor, and when Hans said he didn’t think the third floor would take two years to complete, Summit’s owner told him “Don’t worry about that, there’s other floors, you’re taken care of.”
Workplace injury
The drywalling that the Goossens were doing at the hospital involved lifting 30- to 60-pound pails of drywall mud, climbing ladders and scaffolds, and bending and reaching to apply the mud and sanding. On Dec. 3, 2008, Joanne Goossen injured her back lifting a pail of mud up to a scaffold she was using to work at ceiling height. She thought she would be fine the next day, but when she got home she was in a lot of pain and couldn’t move.
Hans Goossen informed the site supervisor and Summit’s owner about his wife’s accident the next day. He told them she was home resting and hoped to improve over the next few days so she could return to work. Each day after that, they both asked Hans how Joanne was doing. At the first safety meeting following Joanne’s accident, Hans Goossen told the safety supervisor about it.
On Dec. 11, Hans told Summit’s owner that Joanne’s injury was more serious than they had hoped — she had “complex regional pain syndrome” and pain in both her upper and lower back — and they would have to file a workers’ compensation claim. However, the owner said they would have to get their own workers’ compensation coverage and Hans should be able to support both himself and his wife.
A short time later, Hans and other contractors received a notice from Summit that stated that starting in 2009, all drywall subcontractors must submit GST number, social insurance or business numbers, and workers’ compensation numbers before they could work or get paid. Anyone who didn’t have workers’ compensation coverage could have it supplied by Summit for 10 per cent of their gross pay.
Hans Goossen’s first paycheque in 2009 showed a 10 per cent reduction for “WCB coverage charge.” Summit’s owner then told him that the Alberta Workers’ Compensation Board had advised him to collect money for coverage in this manner.
The Goossens didn’t file a workers’ compensation claim as they were worried Hans would be fired. They knew of other Summit subcontractors who had lost their jobs after getting hurt and filing a claim, though they weren’t completely sure that was the reason for dismissal.
On Jan. 19, 2009, Hans discussed filing a workers’ compensation claim with the safety supervisor, who told him they should file one as the Goossens were part of “the core group” at the hospital site who Summit wanted to keep working. The safety supervisor then asked if Joanne was able to perform computer work at home and, if so, to submit a doctor’s note indicating as much.
Hans presented a doctor’s note at the Jan. 28 safety meeting clearing Joanne for modified computer work at home. However, two days later, Summit’s owner approached Hans and told him “we are cutting crews — you’re the crew.” Goossen finished the workday and was terminated at the end of the day, though he saw the drywall work on the third and fourth floors was not close to being finished.
Hans returned the next day to pick up his tools and saw a large number of workers, many whom were drywall tapers. He hadn’t been told of any performance issues, so he believed he was terminated because Summit didn’t want to deal with his wife’s injury and workers’ compensation claim.
Joanne received workers’ compensation benefits, but only up to Jan. 30, as Summit had indicated to the Workers’ Compensation Board that her employment was only temporary up to Jan. 30, 2009.
Hans and Joanne each filed a human rights complaint — Joanne for discrimination in employment on the basis of a physical disability and Hans for discrimination on the basis of marital status.
Summit maintained that Han was let go because of a shortage of work and the Goossens had almost completed their section. There was no further immediate work at that location and moving them to another project wasn’t viable since they had drywall tapers “scattered all over the place,” the company said.
Workers were employees
The tribunal found that the Goossens weren’t independent contractors but instead were in an employment relationship with Summit, based on the fact they worked solely for Summit, Summit directed and supervised their work, the company provided safety training and materials and equipment. Therefore, Summit was required to provide workers’ compensation coverage. The tribunal also found that Summit’s owner promised at least three years of employment based on its large contracts that would provide such work and the Goossens accepted a lower wage rate based on that promise.
The tribunal also found Joanne Goossen suffered a workplace injury and her husband duly reported it to Summit. The new workers’ compensation premium reduction it introduced following the accident was an attempt to reduce costs or avoid consequences from Joanne’s injury, since it wasn’t credible that a company that had been around for decades suddenly decided to implement such a premium, said the tribunal.
The evidence showed that following Hans Goossen’s termination, Summit still employed approximately 50 workers at the hospital site and hired at least one new drywall taper shortly thereafter. Taken along with the fact Summit had several major contracts, the tribunal found the company’s claim of shortage of work to be “not accurate, credible, or reliable.” This led to the conclusion that, in the absence of any performance issues, Hans Goossen’s termination was part of Summit’s attempt to avoid any cost from his wife’s injury — and his marital status therefore played a role in the termination decision.
The tribunal also found Summit falsely told the Workers’ Compensation Board that her employment would only have lasted until Jan. 30 — the date it terminated her husband’s employment — when all indications were she would have kept working for some time if not injured. In addition, after Hans provided the doctor’s note clearing Joanne for modified work, Summit did nothing to follow up.
Summit didn’t investigate any options for accommodation, even though the Goossens indicated she was willing to work and hoped to return. As a result, it terminated her employment because of her disability, which constituted discrimination, the tribunal said.
“On the evidence, I infer that the catalyst for Summit’s actions were to avoid any penalty or cost to Summit that may have resulted from Mrs. Goossen’s workplace injury,” the tribunal said. “If Mrs. Goossen’s injury had not occurred, the facts establish that both Mr. and Mrs. Goossen would have continued working at Summit for several years.”
Summit was ordered to pay Joanne Goossen $20,000 for injury to dignity and self-respect because of the discrimination she suffered. No damages for lost workers’ compensation coverage were awarded as requested by Joanne.
Summit was also ordered to pay Hans Goossen $20,000 for injury to his dignity and self-respect arising from the discrimination he suffered, as well as lost wages from the date of his termination to Oct. 31, 2011 — the estimated date he would have had work with Summit had Joanne not been injured — less what he earned at a lesser-paying job from April 2009 to July 2011.
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