Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 which she was entitled under the province's Employment Standards Act. A delegate of the Director of the Employ- ment Standards Branch found Hall had in fact been terminated without cause. Labour Ready was ordered to pay Hall appropriate pay in lieu of notice under the act, along with vacation pay, interest, and a $500 adminis- trative penalty. Labour Ready complied with the del- egate's order and paid Hall in February 2016. Fourteen months later, in April 2017, Hall filed a suit in the B.C. Supreme Court. Her statement of claim alleged that Labour Ready wrongfully terminated her "due to disability and no notice provided" and she sought two months' pay for each of her nine years of service — totalling more than $78,000 — plus $15,000 for loss of benefits and undue hardship. e court found that Hall's claim was brief and missing a substantial amount of information to support her claim. ough she may have been trying to accuse Labour Ready of breach of contract and wrongful dismissal, her short statement of claim con- tained "conclusions of law without any mate- rial facts in support" — such as the "wrong- fully terminated due to disability" statement. It was not Hall's place to make such findings, only the court`s after hearing the evidence. And Hall didn't provide any evidence to back up such statements, said the court. e court found that the only legal "fact" in Hall's statement of claim was "no notice provided." However, this factual statement wasn't enough to support a cause of action. e court noted that B.C.'s Civil Rules require a civil claim to "set out the mate- rial facts giving rise to her claim." Hall's brief statement of claim contained only one fact — no notice provided. e others were un- supported and without actual facts, as there was nothing to support the allegation of wrongful dismissal because of a disability. e court also found that even if Hall pre- sented facts supporting a claim of wrongful dismissal based on disability, this would have related to discrimination based on a pro- tected ground under the B.C. Human Rights Code. e code stipulates discrimination complaints based on protected grounds should be filed with the province's Human Rights Tribunal, not in court, said the court. "e Human Rights Tribunal has exclusive jurisdiction to hear and determine all com- plaints of prohibited employment discrimi- nation within the province," said the court. "is court has no jurisdiction to determine whether the alleged wrongful termination of (Hall) was allegedly due to disability." In addition, the court agreed with La- bour Ready's assertion that Hall's civil claim was an attempt to obtain compensation for wrongful dismissal twice. Hall already re- ceived an award from the Employment Stan- dards Branch for pay in lieu of notice, and she seemed to be "improperly double-dip- ping with this cause of action," said the court. e court saw no way Hall's civil claim could succeed and dismissed it. See Hall v. Trueblue, DBA Labour Ready, 2017 Car- swellBC 3052 (B.C. S.C.). Canadian Employment Law Today | 7 More Cases Discrimination claim is for Human Rights Tribunal: Court « from DISMISSED on page 1 Worker can't see true reason for dismissal: Poor performance A BRITISH COLUMBIA company's firing of an employee was related to its concerns over his job performance and assicated afety issues, not a disability due to poor eyesight, the B.C. Human Rights Tribunal has ruled. Christopher Taylor was a structural welder for Ironside Design Manufacturing, a Chilliwack, B.C. company that performs structural welding work on projects such as buildings and playgrounds. Due to the na- ture of its business, safety is a top priority at Ironside. After a period of time when the company noticed Taylor's work was deteriorating, Ironside developed ways to help him im- prove. However, when this didn't yield sat- isfactory results, the company suggested to Taylor that he get his eyes checked. Taylor didn't feel there was any issue with his eye- sight, as he had never worn prescription glasses — though he did wear reading glasses — and had never had any vision issues in 30 years of working as a welder — the last 10 years with Ironside. In April 2015, Taylor welded a large spool meant to carry heavy wire onto a truck. However, the welds were so bad that the bed wasn't attached, leading to a risk that it could come loose while the truck was on the highway and cause serious injury or death. Ironside determined that this incident dem- onstrated Taylor's quality of work had gotten to the point where the risks were too great to let him continue. It terminated his employ- ment effective April 11. Ironside informed Taylor that his ter- mination was due to incompetence, as the poor quality of his work created a significant threat to public safety." Taylor filed an action for wrongful dis- missal in the B.C. Supreme Court, claiming no one at Ironside had raised any concerns about his eyesight until two days after his termination, when he said Ironside's vice- president told him his eyesight was affecting his ability to pass performance tests required to retain his welding certificate. He then filed a complaint of discrimination regarding em- ployment on the basis of physical disability with the B.C. Human Rights Tribunal, say- ing he was "not made aware of Ironside's discriminatory perception of my eyesight" until obtaining affidavits for the wrongful dismissal case discussing Ironside's con- cerns about his eyesight. e tribunal found it was uncertain that Taylor had a disability since he had never worn prescription glasses, but if Ironside thought he had one and that played a role in the decision to terminate, it could be an is- sue. e tribunal also found Taylor's termi- nation could be considered adverse impact regarding employment. However, Taylor was aware that Ironside had concerns about his eyesight long be- fore his saw the affidavits for his wrongful dismissal action — Taylor himself acknowl- edged that the vice-president asked him about it two days after his termination. e tribunal found that Ironside had been concerned with Taylor's work for some time and had made attempts to improve it — making it likely its recommendation for Tay- lor to get his eyes checked did happen. In ad- dition, Ironside's concerns had to do with his performance and the safety issues that were tied to it. Regardless of what Taylor found out later in his wrongful dismissal action, it should have been clear to him that Iron- side was concerned with his performance and related safety issues, and the company inquired as to whether his eyesight was a fac- tor in it — not to dismiss him, but to improve his performance and reduce safety risks, said the tribunal. "It is reasonably certain that the tribunal would characterize Ironside's questions about whether Mr. Taylor's eyesight affected his work as a fulfilment of its duty to inquire rather than as an implication of a discrimina- tory basis for its decision," the tribunal said. e tribunal dismissed Taylor's discrimi- nation complaint for having no reason- able prospect of succeeding. See Taylor v. Ironside Design Manufacturing, 2017 Car- swellBC 3070 (B.C. Human Rights Trib.).

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