Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends e ironic taxi service Driver of accessible van can't take wheelchairs because of medical restrictions; discipline and dismissal for refusing such assignments was discrimination BY JEFFREY R. SMITH A BRITISH COLUMBIA taxi company discriminated against a driver when it sus- pended him and stopped providing him with work when medical restrictions pre- vented him from serving passengers with wheelchairs. e company must now pay the driver almost $23,000 in damages, the B.C. Human Rights Tribunal has ruled. Laeke Gebresadik joined Black Top Cabs in Vancouver as a part-time driver in 2011 while he studied at a university. When Gebresadik completed his univer- sity degree, he moved into full-time work for Black Top. On April 1, 2015, he signed a one- year lease for a van with an owner who was also a shareholder in Black Top. Gebresadik paid $1,500 to use the van and the lease stat- ed that he was "self-employed, and therefore is totally responsible for his own WCB, UIC, income tax." He also was responsible for the monthly dispatch fee to Black Top and cer- tain other expenses. Black Top processed all credit card and other charges and was in- volved in paying Gebresadik. In July 2015, a customer complained to the Vancouver Passenger Transportation Board (PTB) about Gebresadik. Since the PTB held Black Top's taxi licence, the company felt it had to suspend Gebresadik or else the PTB would issue a fine that it would pass on to him. e suspension was for five days. A couple of months later, on Sept. 25, 2015, Gebresadik was working when another ve- hicle rear-ended him. Gebresadik suffered from a sore neck, shoulder, arms and lower back as a result of the accident that prevent- ed him from being able to sit in a vehicle for an extended amount of time without getting out and stretching. It hurt for him to hold the steering wheel and he felt a burning sensa- tion in his lower legs. Despite his injuries, Gebresadik felt he needed to work as much as he could because he was in debt from his university degree and had to support his family. He submitted a medical certificate from his doctor indicat- ing he was limited to lifting 10 pounds or less and pushing and pulling the same. is af- fected his ability to pick up passengers with wheelchairs, as he often was assigned such passengers because he drove a van. Company not happy with refusal of assignments Black Top told Gebresadik he hadn't sub- mitted a medical certificate, so he provided the same one a second time. He assumed his medical restrictions would be entered into his driver ID, but the dispatcher continued to assign him passengers with wheelchairs. When this occurred, he told the dispatcher he was unable to pick up the customer due to his medical restrictions. On one occa- sion, the dispatcher raised his voice, swore at him, and mocked his accent when Gebre- sadik tried to explain his restrictions. e dispatcher informed Black Top's gen- eral manager that Gebresadik was refusing to take wheelchairs and Black Top suspend- ed Gebresadik twice — in mid-October and late November 2015 — for refusing to pick up a passenger with a wheelchair. Black Top's general manager also told the owner of the van Gebresadik leased that his driver wasn't complying with wheelchair trips. Gebresadik attended a meeting on Dec. 2 with the general manager, the shareholder who co-owned his van, and the other co- owner of the van. Gebresadik explained his medical restrictions but said he wanted to work something out so he could continue to drive for Black Top. e general manager asked for a copy of his medical certificate, to which Gebresadik replied he had already provided it twice. According to Gebresadik, the general manager forced him to give the van's lease, since van drivers were required to take pas- sengers with wheelchairs and the general manager told him he had to "do wheelchair or do car." Gebresadik asked if he could be prioritized for getting taxis on a daily lease basis — which he had before he signed the lease — but the general manager said it was a first-come, first-serve basis. However, though Gebresadik called every week through January, February, and March 2016, he wasn't assigned any taxis. He also noticed in February that Black Top adver- tised for new drivers. Gebresadik filed a human rights com- plaint, claiming that Black Top discriminat- ed against him in his employment, based on physical disability, when it stopped provid- ing him with work. e tribunal found that Gebresadik's medical certificate confirmed his injuries and his ongoing symptoms and that he had a disability as defined under the B.C. Human Rights Code. It also found that Gebresadik suffered an adverse impact when Black Top suspended him "after he declined to accept wheelchair passengers in compliance with his doctor's orders," then forced him to give up driving the van and failing to provide him with work after the Dec. 2, 2015 meeting. Finally, the tribunal found that Black Top's motivation for its actions was Gebresadik's disability. "I find that Mr. Gebresadik's disability was an inextricable factor in the adverse impact that he suffered," the tribunal said. "ere is an obvious link between his disability since, had it not been for his disability, he would not have required an accommodation, and he would not have suffered the adverse impacts." Black Top argued that the ability to carry out wheelchair trips was a bona fide occu- pational requirement because its taxi licence requires accessible vans to service wheel- chair users, but the tribunal said the com- pany didn't prove that providing work to Ge- bresadik or allowing him to continue his van lease would impact its ability to offer service to wheelchair users — there were 35 other wheelchair-accessible vans in the Black Top fleet — nor that it made any effort to accom- modate Gebresadik. e tribunal also found that, despite the lease agreement stating Gebresadik was self- employed, there was in fact an employment relationship. Black Top was in a position of control over its drivers and its drivers were in a position of dependency. For example, the tribunal pointed to the fact Black Top pro- vided its drivers with orientation and docu- ments that contained rules and a dress code. ese rules and dress code were imposed by Black Top and were evidence of significant control over the drivers, said the tribunal. e tribunal also pointed to the fact Black Top suspended Gebresadik multiple times. e ability to suspend someone for failing to comply with its rules and prevent the driver from working was characteristic of an em- ployment relationship. In addition, driv- ers delivered their fees to Black Top, which paid them after deductions for their leases. While drivers took breaks when they wanted to, they exercised discretion to do so under Black Top's rules, said the tribunal. As a result, the tribunal found Gebresadik was subject to discrimination in his employ- ment. Black Top was ordered to pay Gebre- sadik $7,781.03 for lost wages and $15,000 for injury to his dignity, feelings, and self- respect, and $200 in expenses for a total of 22,981.03. e company was also required to develop, institute, and circulate to drivers a human rights policy and process. For more information see: • Gebresadik v. Black Top Cabs, 2017 Car- swellBC 3675 (Ont. Human Rights Trib.).

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