Canadian Employment Law Today

July 14, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS EDITION of You Make the Call involves a foreign worker who claimed his employer discriminated against him on the grounds of physical disability and place of origin. Sergiy Zabara was a Ukranian who came to Canada under the Temporary Foreign Worker Program. He was hired as a mushroom har - vester for All Seasons Mushrooms, an organic mushroom producer based in Langley, B.C., in October 2013 at its Crossfield, Alta., farm. As an agricultural worker, he often worked long hours at different times — sometimes 16 to 18 hours per day, much of it on a ladder picking mushrooms. Agricultural workers are exempt from overtime provisions in the Alberta Em - ployment Standards Code due to the seasonal nature of the work. According to Zabara, other workers told him that the company didn't like Ukranian em - ployees and they often worked longer hours than Canadian and Asian employees. He also felt he was assigned to areas where picking was more difficult, although all workers were re- quired to work from the floor up to the upper tiers of their section. In March 2015, Zabara began experiencing medical problems. After visiting his doctor, his supervisor accommodated him with reduced hours and duties. However, a new supervisor arrived in September 2015 and his accommo - dation ended. Zabara provided a medical note authorizing medical leave from June 15 to Sept. 15, 2015. All Seasons Mushrooms agreed to accom - modate his leave and Zabara returned to the Ukraine. In September, Zabara returned from the Ukraine but he told his supervisor that he had stomach, kidney and liver pain that made him unable to work the long days on the ladder. He also said he had high blood pressure and asked to work on the floor instead. The supervisor refused as he didn't provide medical informa - tion supporting his request. On Dec. 3, Zabara told his supervisor that he could no longer work 16 to 18 hours per day and his family doctor said he should be limited to eight hours per day and receive two days off per week. Around this time, he also contacted provincial health and safety authori - ties, leading to an inspection of the farm on Dec. 14. The same day of the inspection, Zabara injured his back while working on a ladder. However, before he could inform anyone, the company terminated his employment. It said that he wasn't suitable for continued employment and provided him with pay in lieu of notice under the code along with return transportation to the Ukraine, as re - quired under the Temporary Foreign Worker Program. Zabara filed a human rights complaint claiming that All Seasons Mushrooms discrim- inated against him by assigning him longer hours and worse picking areas because he was Ukranian, creating a toxic work environment. He also claimed that he was fired because he couldn't work long hours, which was discrimi - nation related to his physical disability. YOU MAKE THE CALL Did the company discriminate against the worker? OR Was the termination reasonable? IF YOU SAID there was no discrimination, you're right. A human rights officer investigated Zabara's complaint and found no concrete evi- dence that Zabara had been subjected to com- ments in the workplace regarding his place of origin or race. In addition, the company accom- modated Zabara's medical leave when he pro- vided a doctor's note supporting it. It refused to accommodate him with modified duties after he returned from his medical leave as there was no supporting medical information. Zabara only provided a doctor's note in early Decem - ber. The human rights officer also noted that Zabara didn't provide any details on his accusa- tions of discrimination based on his origins and he hadn't filed any harassment complaints. The complaint was dismissed. Zabara appealed to the Alberta Human Rights Tribunal and provided additional medi - cal documentation he obtained during his medical leave and during treatments after his dismissal, but the tribunal found that none of it had been provided to All Seasons Mushrooms. The tribunal agreed that the company accom - modated Zabara's medical leave after he provid- ed medical information but it had no informa- tion supporting the need to accommodate after he returned. It also agreed that the allegations of discrimination based on Zabara's place of ori- gin and race were "primarily based on conjec- ture and supposition" and upheld the dismissal of the complaint. For more information, see: • Zabara v. All Seasons Mushrooms Inc., 2021 AHRC 53 (Alta. Human Rights Trib.). Foreign worker picks fight over accommodation, discrimination The worker's medical issues prevented him from working the 16- to 18-hour days that were common for the position.

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