Human rights tribunal looks at bona fide occupational requirements
The British Columbia Human Rights Tribunal has dismissed a worker’s complaint that his employer failed to accommodate him after he lost his driver’s license that was essential to his job.
The worker joined West Vancouver Transit in May 2018, operated by the District of West Vancouver, as a permanent part-time community bus driver. His job duties involved driving shuttle buses on scheduled routes safety, assisting passengers, and collecting fares. The position required him to have a valid, unrestricted Class 4 commercial driving license under the BC Motor Vehicle Act (MVA).
The worker had only been with West Vancouver Transit for a week when he suffered a major heart attack that caused him to lose consciousness and be taken by ambulance to the hospital. He had an implantable cardioverter defibrillator (ICD) implanted in his chest.
A couple of days later, the worker’s treating doctor sent a letter to West Vancouver Transit’s operations supervisor indicating that the worker had received emergency medical treatment and was unable to work until further notice.
Loss of driver’s license
The worker was discharged in June with the instruction that he would not be able to drive a commercial bus because of the possibility that he could lose consciousness again due to his condition. The hospital also issued him a medical certificate for employment insurance benefits stating that he “cannot return to commercial driving ever.”
The worker’s doctor also sent a report to RoadSafetyBC, the province’s vehicle licensing agency, saying that he should never be allowed to hold a commercial driver’s license and, if he didn’t have an ICD shock over the next six months, he could be allowed to start driving private vehicles. As a result, RoadSafetyBC cancelled the worker’s commercial and private driver’s licenses.
RoadSafetyBC’s guidelines for non-commercial licences state that drivers with an ICD are eligible for certain classes of license with more than six months since their last episode of cardiac arrest, a “individual cases may be made for allowing a commercial driver to continue driving with an ICD provided the annual risk of sudden incapacitation is felt to be one per cent or less.”
In late August, the worker informed West Vancouver Transit that he was still disabled and he had been told that he would never drive commercially again. He said that he was willing to take training for non-driving jobs with the transit agency.
Accommodation discussion for physical disability
A few weeks later, the worker met with management to discuss accommodation of his physical disability. Since the worker was unable to work as a community bus driver, they discussed other possible roles and the worker’s qualifications and medical restrictions.
The worker provided a document from his doctor stating that he was able to return to work, but not as a commercial bus driver since he wasn’t able to hold a Class 4 driver’s license. It also said that he should avoid excessive kneeling or squatting due to knee pain.
According to West Vancouver Transit, the worker said at another meeting in November that he felt it would be best to have knee replacement surgery. The worker disagreed that he had already agreed to have the surgery as he told the employer that he could do many things without the surgery.
They discussed two options – the worker could resign from his position or have the surgery. The worker said he didn’t want to resign, so West Vancouver Transit agreed to wait for him to have surgery. According to the worker, the agency “strongly implied” that he wouldn’t be accommodated if he didn’t get the surgery. West Vancouver Transit denied this.
Alternative positions didn’t meet worker’s restrictions
The parties also discussed the positions of transit service technician or mechanic, but both of these required a commercial driver’s license and the ability to kneel and squat. The worker also wasn’t qualified for the mechanic job.
The worker also expressed interest in a gardener position, but the core duties involved frequent kneeling and squatting.
The worker had the knee replacement surgery and rehabilitated it to the point where it was fully functional with minimal pain. He received Canada Pension Plan disability benefits for three months, but these were cut off when he was deemed to not be permanently disabled. He had no income after August 2018.
West Vancouver Transit took no action to accommodate the worker, but the worker didn’t provide any further medical information.
Human rights complaint related to disability
The worker filed a human rights complaint alleging that West Vancouver Transit discriminated against him because it perceived him to be disabled and denied him the opportunity to return to work. He also alleged that the agency failed to fulfill its duty to accommodate him by not seeking his doctor’s opinion about his fitness to perform the duties of the transit service technician or mechanic positions and preferring that he resign.
The West Vancouver Transit applied to dismiss the worker’s complaint on the ground that it had no reasonable prospect of success.
The tribunal noted that the worker would have to show three elements to prove his complaint at a hearing:
- he had or was perceived to have a disability protected by the BC Human Rights Code
- he was adversely impacted in his employment
- his disability was a factor in the adverse impact.
If he was able to prove those elements, West Vancouver Transit would have to justify the impact as a bona fide occupational requirement – which the agency argued it could in a hearing.
The test to prove a bona fide occupational requirement involves establishing that the employer adopted the standard for a purpose rationally connected to the performance of the job, it adopted it in an honest and good-faith belief that it was necessary fulfill that legitimate purpose, and the standard was reasonably necessary to accomplish that legitimate purpose.
Bona fide occupational requirement
The tribunal found that the standard of having a Class 4 commercial license to operate a community shuttle bus was mandatory under the MVA and there was no evidence that West Vancouver Transit adopted that standard without honestly believing it was necessary to safely and lawfully perform the duties of a community bus driver.
It was also evident that the agency would not be able to accommodate the worker in that position without the Class 4 commercial license, as if it did so it would disqualify the agency from coverage from the Insurance Corporation of BC, leaving it exposed to “unacceptable risks of harm and liability,” said the tribunal.
As for the alternative positions that were discussed, neither were legitimate options because they also required the Class 4 commercial license, the tribunal said.
The tribunal also found that West Vancouver Transit took steps to obtain medical information about the worker’s abilities and any restrictions, which turned out to be avoiding excessive kneeling and squatting – also requirements of the suggested alternative positions.
The tribunal determined that it was reasonably certain that West Vancouver Transit would be able to establish in a hearing that it could not accommodate the worker’s disabilities in either the community bus driver position or the alternative jobs without undue hardship. The agency’s application to dismiss the complaint was granted. See Spangler v. District of West Vancouver and another, 2024 BCHRT 68.
