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Canadian Safety Reporter
Aug 1, 2018

Worker loses age discrimination complaint against WorkSafeBC

Workers’ compensation authority denied proposal to attend post-secondary program because it wasn’t necessary to find appropriate work
By Jeffrey R. Smith
    
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A British Columbia worker has lost his claim that the province’s workers’ compensation board discriminated against him because of his age when it refused to support his desire to attend a comprehensive vocational training program usually approved for workers with less experience.

Shawn McLaren, 40, was a marble mason installer in Vancouver, whose job entailed cutting and setting marble tiles in various construction and renovation locations. On Sept. 23, 2015, he injured his left shoulder at work and filed a claim with WorkSafeBC — B.C.’s worker’s compensation authority. WorkSafeBC accepted McLaren’s claim and, once it became clear the shoulder injury would have permanent effects, granted a permanent partial disability award for loss of function.

McLaren was unable to return to his pre-injury job of marble mason installer and his employer didn’t have any modified duties for him to perform, so he was referred to WorkSafeBC’s vocational rehabilitation services department. The department provided assistance to workers like McLaren who couldn’t return to their regular job following a workplace injury in finding suitable employment.

Saleem Kaba was the vocational rehabilitation consultant assigned to help McLaren. Kaba met with McLaren in May 2016 to discuss McLaren’s vocational rehabilitation plan, which had a goal of finding McLaren employment with the same level of compensation as McLaren’s pre-injury position.

Over several conversations – both face-to-face and by telephone – McLaren and Kaba discussed McLaren’s work experience, education, interests, and physical restrictions. Kaba provided information on the labour market and areas of job growth and they discussed several potential jobs and the training each would require.

McLaren had experience in counter top installation, managing projects, and lead hand work in Alberta, but couldn’t continue that work in B.C. due to different certification requirements for project management. Kaba suggested that WorkSafeBC could provide McLaren with a short training program that would allow him to get the necessary certification in project management and safety management that could help McLaren get work as a foreman in the marble mason industry. The training would take five weeks, after which WorkSafeBC would continue to support McLaren for up to 12 weeks of job searching.

However, the training included a two-week worksite safety and forklift training course that McLaren said he wouldn’t feel safe participating in. He also didn’t want to take a two-week construction safety officer course because it was a general labour position that he didn’t feel was compatible with his shoulder condition. Kaba explained that such positions with large employers didn’t involve physical labour and the forklift training would increase McLaren’s employability, but McLaren wasn’t convinced.

Worker pushed for post-secondary program

McLaren agreed to think it over, but he also looked into other options. He learned he would be a good fit for a program at the B.C. Institute of Technology (BCIT) because of his work experience and skills. He also found out WorkSafeBC often sent people to BCIT for vocational rehabilitation training.

McLaren discussed the BCIT program with Kaba, but Kaba said WorkSafeBC couldn’t support him taking it because it wasn’t reasonably needed or necessary for his return to work – standards required under the province’s workers’ compensation legislation and policy to warrant benefits during retraining – given McLaren’s existing skills and experience. Kaba suggested the forklift training again, but McLaren became frustrated and asked to speak to Kaba’s manager since he felt at that point there was a communication problem.

According to McLaren, Kaba chuckled when he brought up the BCIT program and told him he was too old to take the course and WorkSafeBC would “only consider sending a younger WorkSafeBC victim for that kind of training.” He also said Kaba’s manager never contacted him.

A few weeks later, McLaren was brainstorming possible occupations with Kaba and, when welding came up – which required a three-year training program – McLaren brought up the BCIT program, which was a two-year program. He again asked why he wasn’t eligible for the program – saying “it’s because I’m too old, right?” – and Kaba responded, “it’s not that you’re too old, it’s that you’re not young enough and we only send younger WorkSafeBC victims for those kind of retraining courses.”

McLaren was frustrated and couldn’t understand why WorkSafeBC wouldn’t support him taking the BCIT program. He didn’t understand the threshold of what was considered reasonably necessary to get him back to work, and felt the BCIT training was a good option for him.

McLaren filed a human rights complaint, claiming WorkSafeBC discriminated against him on the basis of his age by denying him support for the BCIT program – support it provided injured workers younger than him.

The tribunal agreed that WorkSafeBC’s decision not to approve McLaren’s participation in the BCIT program was an adverse impact, one of the factors for discrimination. However, the board disagreed that age was a factor in the decision causing the adverse impact.

The tribunal found that while WorkSafeBC’s policy that permitted participation in programs such as that at BCIT mostly affected younger workers, it was because those workers had less experience and skills and as a result needed more comprehensive training. The relevant legislation and policy stated that “WorkSafeBC should provide the cost of any formal training program considered reasonably necessary to overcome the effects of any residual disability experienced by the worker. The policy references upgrading a worker’s existing skills or qualifications with the primary guideline being that the board should, where practical, support a program sufficient to restore the worker to an occupational category comparable in terms of earning capacity to the pre-injury occupation.”

In McLaren’s case, his existing work experience and skills meant he didn’t need to attend a comprehensive program such as the one at BCIT to find an occupation similar to his pre-injury job. As a result, it wasn’t reasonably necessary to send him to BCIT and WorkSafeBC discussed other options with him, the tribunal said.

The tribunal also found Kaba didn’t tell McLaren he was too old for the BCIT program, but McLaren erroneously got that impression because he misunderstood the policy was that workers with less experience and skill were only eligible, regardless of their age.

The tribunal determined that McLaren did not prove age was a factor in WorkSafeBC’s decision to deny his proposal to attend the BCIT program and, as a result, there was no age discrimination under the B.C. Human Rights Code. McLaren’s complaint was dismissed in its entirety.

For more information see:

• McLaren v. Workers’ Compensation Board of BC (No. 2), 2018 CarswellBC 1632 (B.C. Human Rights Trib.).
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