Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 February 15, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. CREDIT: BOLMARKETING/SHUTTERSTOCK rights complaint — Joanne for discrimina- tion in employment on the basis of a physi- cal disability and Hans for discrimination on the basis of marital status. Summit maintained that Han was let go because of a shortage of work and the Goossens had almost completed their sec- tion. ere was no further immediate work at that location and moving them to an- other project wasn't viable since they had drywall tapers "scattered all over the place," the company said. Workers were employees e tribunal found that the Goossens weren't independent contractors but in- stead were in an employment relation- ship with Summit, based on the fact they worked solely for Summit, Summit di- rected and supervised their work, the company provided safety training and materials as well as equipment. erefore, Summit was required to provide workers' compensation coverage. e tribunal also found that Summit's owner promised at least three years of employment based on its large contracts that would provide such work and the Goossen's accepted a lower wage rate based on that promise. e tribunal also found Joanne Goossen suffered a workplace injury and her husband duly reported it to Summit. e new work- ers' compensation premium reduction it introduced following the accident was an at- tempt to reduce costs or avoid consequences from Joanne's injury, since it wasn't credible that a company that had been around for de- cades suddenly decided to implement such a premium, said the tribunal. e evidence showed that following Hans Goossen's termination, Summit still employed approximately 50 workers at the hospital site and hired at least one new dry- wall taper shortly thereafter. Taken along with the fact Summit had several major contracts, the tribunal found the com- pany's claim of shortage of work to be "not accurate, credible, or reliable." is led to the conclusion that, in the absence of any performance issues, Hans Goossen's ter- mination was part of Summit's attempt to avoid any cost from his wife's injury — and his marital status therefore played a role in the termination decision. e tribunal also found Summit falsely told the Workers' Compensation Board that her employment would only have last- ed until Jan. 30 — the date it terminated her husband's employment — when all indica- tions were she would have kept working for some time if not injured. In addition, after Hans provided the doctor's note clearing Joanne for modified work, Summit did nothing to follow up. Summit didn't investigate any options for accommodation, even though the Goos- sen's indicated she was willing to work and hoped to return. As a result, it terminated her employment because of her disability, which constituted discrimination, the tri- bunal said. "On the evidence, I infer that the catalyst for Summit's actions were to avoid any pen- alty or cost to Summit that may have result- ed from Mrs. Goossen's workplace injury," the tribunal said. "If Mrs. Goossen's injury had not occurred, the facts establish that both Mr. and Mrs. Goossen would have con- tinued working at Summit for several years." Summit was ordered to pay Joanne Goossen $20,000 for injury to dignity and self-respect because of the discrimination she suffered. No damages for lost workers' compensation coverage were awarded as requested by Joanne. Summit was also ordered to pay Hans Goossen $20,000 for injury to his dignity and self-respect arising from the discrimi- nation he suffered, as well as lost wages from the date of his termination to Oct. 31, 2011 — the estimated date he would have had em- ployment with Summit had Joanne not been injured — less what he earned at a lesser- paying job from April 2009 to July 2011. For more information see: • Goossen v. Summit Solar Drywall Con- tractors Inc., 2016 CarswellAlta 2646 (Alta. Human Rights Trib.).

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