Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.
In December 2023, the Vice-Chairperson of the New Brunswick Labour and Employment Board (Board) confirmed that the employer discriminated against an employee when the employer terminated his employment following an injury. The Board also concluded that the employer bullied, harassed and belittled the employee. Consequently, the Board awarded $10,000 as general damages, which included damages for injury to the employee’s dignity, feelings, self-respect and self-worth. Further, the employer was required to participate in a one-day human rights training course on the duty to accommodate.
What happened?
The employer was a roofing company. The employee was a roofer who installed roofing products on residential and commercial buildings since 2004. This arrangement went on without conflicts for years.
The employee was hired each spring to early winter every year. One day, the employee fell 16 feet from a ladder and landed on his back onto cement, and he struck his head. This caused the employee to injure his spine and get a concussion. He was therefore prescribed to be off work by his doctor.
The employee applied for workers’ compensation benefits at WorkSafeNB, and the application was accepted. The employee was diagnosed with soft tissue injury to the thoracic and lumbar spine with chronic back problems and completed physiotherapy, occupational therapy, pain management, use of a lumbosacral corset and medications.
The Case Manager at WorkSafeNB drafted an appropriate return-to-work plan and the employee returned to work with modified duties. At the meeting (the employer never attended), the employee was told to return to work and work four hours at a time-and he was not to climb ladders or be on a roof.
When he returned, the employee faced some unexpected things, namely yelling from the employer in front of coworkers: “I should have never hired you in the first place, “you are useless,” “you are burying my company,” “you should be up on a ladder,” “you are ruining me,” and “you can climb the ladder.” This went on for weeks.
The employee felt sick to his stomach and felt anxiety, depression and sleeplessness because of the bullying, humiliation, harassment and demeaning comments made by the employer. He was starting to feel hopeless.
After returning to work, the employee experienced a crush type injury to his left thumb; this meant that he had a nondisplaced fracture of the thumb with soft tissue swelling. The employee was again prescribed to be off work by his doctor and his workers’ compensation claim was accepted. He went through hand therapy, splinting and medications.
The employee then had a surgical procedure and began a gradual return to work. He was on light duties, and again heard the employer’s comments: “why aren’t you up on a roof yet,” “how much longer do I have to put up with you,” and “you are useless to me.”
The employee was laid off at the end of the season as usual and anticipated returning to work in the spring.
However, when the employee met the Case Manager from WorkSafeNB (again the employer did not attend) to discuss the return to work, he was told that there was no work available to him because the employer did not want him back at the workplace. That is, even though the employee was able and willing to work, he could not go back to the employer.
The employee was shocked by the employer’s unwillingness to get him back to work. He loved his job and respected his coworkers.
As a result of what transpired, the Human Rights Commission referred the employee’s complaint to the Board. The employee argued that the employer discriminated against him on the basis of physical disability contrary to the New Brunswick Human Rights Act.
What did the Board decide?
The Board cited the well-known three-part test regarding discrimination:
- Does the complainant have a characteristic protected from discrimination under the Act?
- Has the complainant experienced adverse impact?
- Was the protected character a factor in the adverse impact?
The Board accepted the employee’s evidence as sincere, reasonable and credible in the circumstances. It also found that the employer’s evidence was vague, non-specific and uncorroborated. In fact, the employer’s evidence was refuted by the documentation and WorkSafeNB witnesses’ testimony.
Most importantly, the Board noted that the employer knew that the employee had a disability and tried to make it intolerable for him, until the employee was terminated. Simply put, the Board stated, “There is no doubt that the reason for the termination of [the employee] was his physical health issues.”
The Board concluded:
- The employee had a physical disability.
- The employee was adversely treated because of the hostile and unacceptable acts of the employer.
- The disability was a factor in the adverse treatment, which included the termination and the bullying, harassment, humiliation and belittling.
Though the employee could make out a prima facie case of discrimination, the employer had nothing to offer to rebut it. As a result, the Board awarded the employee $10,000 for general damages, which included damages for injury to the employee’s dignity, feelings, self-respect and self-worth. The employer also had to participate in a one-day human rights training course on the duty to accommodate.
What can we take from this case?
As can be seen in this case, employers will pay the price for inappropriately treating employees with physical disabilities.
Employers are recommended to brush up on applicable human rights legislation and know the obligations that they must meet. It is completely unacceptable to discriminate against an employee-employers are clearly not allowed to bully their employees who are recovering and gradually returning to work.
The post Discrimination Based on Physical Disability Costly for New Brunswick Employer appeared first on Slaw.
