Canadian Employment Law Today

February 15, 2017

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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4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: DISCRIMINATION Husband and wife both discriminated against by employer Accommodation not sought for wife injured at work; husband was fired because of wife's workers' compensation claim BY JEFFREY R. SMITH A n Alberta company discrimi- nated against a married couple who worked as contractors when it fired the husband to avoid the costs and responsibilities of worker's com - pensation for the wife who had been injured in a workplace accident, the Alberta Human Rights Tribunal has ruled. Hans and Joanne Goossen were a hus- band 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. ey had previously worked for Summit in 2005 on a short-term project. According to Hans Goossen, they ac- cepted a slightly lower wage from Sum- mit 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 including the hospital. ere was no formal written contract for the Goos- sens 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. e Goossens submitted time sheets separate- ly but were paid biweekly with one cheque for both of them. ey supplied their own hand tools while Summit provided dry- wall supplies and equipment and assigned them locations to work. e company also provided safety training. Summit held safety meetings for all tradespersons at the hospital site once per week. e Goossens worked at the hotel proj- ect until Nov. 20, when Summit told them to move to the hospital project. e site su- pervisor 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 e 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 scaf- fold 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 super- visor 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 re- gional 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 sup- port both himself and his wife. A short time later, Hans and other con- tractors received a notice from Summit that indicated starting in 2009, all drywall subcontractors must submit GST num- bers, social insurance or business num- bers, 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' Com- pensation Board had advised him to collect money for coverage in this manner. e Goossens didn't file a workers' com- pensation claim as they were worried Hans would be fired. ey knew of other Sum- mit 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. e safety supervi- sor 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. How- ever, two days later, Summit's owner ap- proached Hans and told him "we are cut- ting 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 work- ers, 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' Compensa- tion Board that her employment was only temporary up to Jan. 30, 2009. Han and Joanne each filed a human EMPLOYERS can discriminate against employees in many ways. Whether intentional or not, if an employee is disadvantaged because of a characteristic protected by human rights legislation, the employer can get into human rights trouble. And it doesn't really matter whether the arrangement is that of an employment or a contractor relationship. Disability is a common reason for discrimination and it often happens when an employer doesn't properly investigate whether it can accommodate an employee who's been injured. And if that employee has a spouse who is also an employee and is dismissed, then the protected ground of family status also comes into play. BACKGROUND

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