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Human rights law: Worker challenges WorkSafeBC's policy

A 40-year-old marble mason in Vancouver suffered a work-related shoulder injury in 2015 for which WorkSafeBC granted him an award of permanent partial disability. Because his employer had no modified duties for him, he applied for assistance from the WorkSafeBC's vocational rehabilitation services department, which assists in finding alternative employment to accommodate the disabilities of such workers. However, this worker later lodged a complaint with the BC Human Rights Tribunal, claiming the agency violated human rights law by denying his request to attend a post-secondary program based on his age.

The injured worker had several meetings with a consultant at the rehabilitation program, during which his job experience, physical restrictions, interests and education were discussed. The consultant suggested a short training course that would provide the worker with project and safety management certification to obtain employment in the marble mason industry as a foreman. WorkSafeBC would arrange the five-week training course and then provide another 12 weeks of support in finding suitable work.

However, the injured worker gave it some thought and reported to the consultant that he was not comfortable with the suggested course and would rather enroll in a two-year B.C. Institute of Technology (BCIT) Project Management program. However, his request was denied because his experience and skill level were such that the program was not reasonably necessary for him to secure employment at a similar level as his pre-injury work. 

The worker claimed in his human rights complaint that he was told he was too old to qualify for the BCIT training. However, his complaint was eventually dismissed by the Tribunal. The Tribunal found that the worker likely misunderstood what the consultant was saying. WorkSafeBC's policy with respect to the BCIT training was meant to ameliorate the lack of experience and skill for workers injured at the outset of their working lives. The Tribunal found that differentiating between this opportunity for less experienced workers and the opportunities available for workers with more experience did not constitute age discrimination.

This case involved workers' compensation law, human rights law, and employment law. Vancouver workers who are in similarly complex situations might be smart to discuss their potential complaints with an experienced lawyer before filing claims. An injured worker's chances of success with such matters are much higher with skilled legal counsel in his or her corner.

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