‘There were already performance issues predating the worker’s injuries,’ says lawyer
A British Columbia worker’s complaint that he wasn’t accommodated and was terminated because of his injuries has been dismissed for having no reasonable prospect of success in establishing discrimination.
Cermaq Canada is a salmon farming company that operated a hatchery near Duncan, BC. The hatchery was in a fairly remote location outside of town with a significant amount of water in tanks and settling ponds, along with noisy machinery inside the buildings. Cermaq treated the hatchery as a safety-sensitive workplace.
The worker began employment with Cermaq in November 2020 as a freshwater technician. He was responsible for being the first responder to alarm systems relating to eggs and fish at the facility in the evening, completing low-risk tasks to help the day shift, and serving as security beyond regular working hours.
During the worker’s three-month probationary period, he worked with another employee while he was being trained. Once he became a full employee, he worked alone at the facility from 11 p.m. to 7:30 a.m.
During his overnight shifts, the worker was required to wear a “loner device,” which allowed him to check in and notify a third-party service provider that he was safe. The device included an alarm that reminded him to check in and notified the service provider if there was any impact from a fall or no movement for a period of time. Cermaq had a policy requiring employees working alone to check in with the device every hour. The worker was trained on the policy and on how to use the device.
However, once the worker started working overnight shifts on his own, he consistently failed to use his loner device under the company’s policy and was often late for work. He was given verbal warnings, but he still didn’t use his loner device properly.
Worker suffers workplace injury
On July 24, 2021, the worker told Cermaq that he had strained his back at work and submitted an injury report. The worker told the company’s occupational health and safety co-ordinator that his back was improving and he would continue to monitor its progress. On Aug. 3 he told his supervisor that he could feel some tightness but it wasn’t “a huge bother.” The occupational health and safety co-ordinator determined that, based on the worker’s comments, he was able to perform his regular duties without medical aid.
About four weeks later, on Aug. 19, the worker told his manager that he had broken toes that would likely slow him down at work. He was allowed to wear his own boots and arrive late for his next shift.
On Aug. 21, the worker’s loner device was logged off for almost his entire shift, while three days later it was logged off for three-and-a-half hours. Management reviewed video surveillance footage that depicted the worker entering a room, closing the blinds, and shutting off the lights – at a time when the loner device was turned off.
According to the worker, the device malfunctioned for the first six months by not alerting him when it was time for check-ins. However, he acknowledged turning it off when he wasn’t moving so the alarm wouldn’t go off.
Cermaq performed a physical demands assessment on Aug. 22 that recommended modified work duties due to the worker’s broken toes, so the company modified his duties accordingly. The worker told his manager that he was having mental health issues and asked about counselling services, which the manager advised were available for all employees. The worker took three days off for medical reasons, supported by a doctor’s note.
On Sept. 3, the worker returned to work, although he was late. He missed additional days due to a possible COVID-19 infection.
Employer terminates worker’s employment for cause
On Sept. 8, the worker texted his manager to say that he had re-injured his back on Sept. 3 and had a physical therapy appointment. The manager asked him to attend a meeting on Sept. 10.
At the meeting, Cermaq terminated the worker’s employment for failing to keep his loner device on.
The worker filed a human rights application alleging that Cermaq discriminated against him by failing to accommodate his broken toes and back injury, and subsequently terminating his employment.
Cermaq countered that the worker didn’t have physical disabilities within the meaning of the BC Human Rights Code and that his employment was terminated solely for poor work performance. The company applied to have the worker’s complaint dismissed as having no reasonable prospect of success.
The BC Human Rights Tribunal noted that the worker would have to prove at a hearing that he had a characteristic protected by the code, he was adversely affected in employment, and his protected characteristic was a factor in the adverse impact.
Proof of disability
The tribunal felt that there was some reasonable prospect for the worker proving that his broken toes and back injury constituted physical disabilities. Although “disability” isn’t defined in the code, the tribunal noted that, in past decisions, it considered “the individual’s physical or mental impairment, if any; the functional limitations, if any, which result from that impairment; and the social, legislative or other response to that impairment and/or limitations.”
The tribunal noted that the worker required modified duties for his broken toes and his back injury required treatment, so it wasn’t “out of the realm of conjecture” that the latter didn’t affect his job performance, even though he didn’t request accommodation.
However, the tribunal found that the worker had no reasonable prospect of proving an adverse impact in any failure to accommodate. While the worker’s termination could be an adverse impact, the worker didn’t request accommodation for his back and said he could continue to work as normal. When the worker broke his toes, the company modified his duties as indicated by a physical demands assessment, the tribunal said, adding that the worker only missed work due to mental health issues. If the worker required additional accommodation, it was his obligation to raise it, the tribunal said.
“Just because someone calls it a disability doesn't mean it's a disability - it really is related to how impaired they are to continue the normal functions of life,” says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver. “Any disability of a transient nature, like a broken leg, isn’t what's contemplated for protection under the code.”
Non-discriminatory reason for termination
The tribunal also found that Cermaq was reasonably certain to prove that the worker’s disabilities weren’t a factor in his termination and the company had a non-discriminatory reason for the termination – the worker’s failure to follow company policy on the loner device, for which he had been trained and warned.
“There was a very serious breach of Cermaq’s policy and that's why the worker was terminated,” says Samuels. “The alleged discrimination or duty to accommodate was a red herring because the company had very clear grounds to terminate for just cause.”
Cermaq did exactly what it was supposed to do with respect to its policy, adds Samuels.
“Any inference of discrimination that could be drawn because of the timing, but the tribunal said [Cermaq’s] evidence of a non-discriminatory reason for the termination displaced any whiff that it was due to a disability,” she says. “There were already performance issues predating the worker’s injuries and he'd been warned about the consequences of them, so the worker couldn’t show a connection between a disability and the termination when there was clear evidence that it wasn’t discrimination.”
The tribunal determined that the worker had no reasonable prospect of establishing disability discrimination and granted Cermaq’s application to dismiss the application.
Documentation of performance issues
“I think the most important thing that any employer could do, and it seems like this employer did, is to have documentation that it has given warnings, that it’s rolled out and explained the policy, it’s got the employee to sign off that they understand it and they know what the consequences are,” says Samuels. “And if there are performance issues or warnings, those are documented.”
“Having a broken toe isn't a disability - it wasn’t an ongoing thing in any event, although [Cermaq] did try to accommodate him initially,” she says. “But in the meantime, there was a very serious breach of their policy and that's why he was terminated, so the alleged discrimination or duty to accommodate was a red herring, because they had very clear grounds for termination.”
