B.C. man, fired by text after disclosing he had Hepatitis C, awarded $67K by human rights tribunal

A construction worker struggling with grief. Image: HR Law Canada

A B.C. worker, fired callously by text message after he told his employer he had been diagnosed with Hepatitis C, has been awarded more than $67,000 by the province’s human rights tribunal.

It’s a case that involved a construction safety officer running across the worksite, yelling about the worker’s disability and calling for him to be fired, and an overt text message explicitly stating hepatitis was the reason for the dismissal.

The tribunal noted the severe impact this had on the worker’s self-worth in awarding lost wages and $18,500 for injury to dignity.

Background

The worker, identified as D, was a general labourer for Path General Contractors, a sole proprietorship. He was hired on Sept. 18, 2018, and worked for 40 hours at week at a rate of $30 per hour. On Oct. 2, 2018, D injured himself at work.

He required medical aid from the construction safety officer (CSO), and at that time D disclosed he had Hepatitis C. It’s a liver infection caused by the Hepatitis C virus and can be a chronic, long-term infection causing various health issues. In D’s case, it caused fluctuations in blood sugar, lethargy and risk of seizures.

After treating D, the CSO ran across the job site to supervisor and yelled: “Holy shit, did you know (D) has hepatitis?”

The CSO also said he wanted D gone, and these comments were audible to other employees.

When D arrived to work the next day, he received a text message from the owner informing him he was being fired because he did not disclose his diagnosis.

Path General Contractors did not participate in the human rights hearing.

The ruling

The tribunal noted the code does not define what constitutes a physical disability, but generally it described it as “a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life.”

It said that Hepatitis C amounts to a disability within the meaning of the code.

It also noted that it was undisputed that D was fired from his job, and discrimination in termination of employment is specifically prohibited. The tribunal also said D’s Hepatitis C only had to be a factor in his firing, not the sole or even primary reason why he was let go.

“While employers rarely announce that they are dismissing an employee for discriminatory reasons, in this instance there is undisputed overt evidence that (D’s) Hepatitis C diagnosis was the reason for his firing,” it said.

It pointed to the CSO’s conduct, who ran across the yard and could be heard yelling that D had hepatitis and he wanted him gone. And, of course, the text message the following day explicitly stating Hepatitis C was the reason for his termination.

“I note that the text message indicates a concern about the failure to disclose the diagnosis rather than the diagnosis itself, but the evidence as a whole supports a conclusion that (D) was fired because of his Hepatitis C diagnosis,” it said.

A stigmatized disease

The tribunal noted that Hepatitis C remains a “largely stigmatized disease.” There are fears about transmission that are fueled by misinformation, combined with moral judgment about how someone may have been infected, that leads to “devaluing a person based on their disease.”

Being terminated because of it had a devastating impact on D’s self-worth. He believed himself unworthy of integrating into society. A colleague of D testified that he overheard other employees making derogatory comments and expressing disgust about Hepatitis C after he was fired.

The remedy: Lost wages

The tribunal said it was satisfied that, without the discrimination, D would have continued his work at Path General Contractors as a general labourer.

D sought $54,080 in lost income, consisting of $31,200 for a 26-week period from Oct. 3, 2018, to April 2, 2019, when he was unemployed. The other $22,880 was the difference in wages between what he was paid at Path and what he earned at his new job for an additional period of 26 weeks.

Noting that he had been on the job for two weeks, and that there was evidence of a work culture at Path of “little respect or support and an environment of toxic masculinity,” it found there was a possibility D would have left because the working environment was unwelcoming and a poor fit.

It ruled a contingency deduction of about 10 per cent was appropriate as a result, so it awarded $48,672 for lost wages.

Injury to dignity

D sought an additional $18,500 for injury to his dignity, feelings and self respect.

The tribunal said that losing a job is serious.

“Courts and the tribunal have recognized that work is an essential aspect of a person’s identity, self-worth, and emotional well-being,” it said.

The conduct of the employer compounded the seriousness of the discrimination. First, the CSO yelled details about D’s disability in front of other workers and demanded he be fired.

Second, the firing text message came without warning after he arrived on the work site the following day.

“While electronic communication has become more prevalent, I find that informing an employee they are fired by text is a callous act and shows disregard for the circumstance and is unnecessary where other methods to communicate the termination are available,” it said.

It said the effect all this had on D was the “most significant” factors in its calculation for damages. D described the impact as an “emotional implosion.” He feared judgement, stigma and disdain. He stopped going out in public or interacting with friends. He felt dehumanized and worthless, the tribunal said.

Witnesses who testified said D went from being a positive, happy person to someone filled with anxiety, depression and despair. He stopped reaching out and “became a turtle hiding in a shell.”

In short, it made him feel like his disability was no longer manageable, he had failed his family and was unable to contribute to society.

It awarded $18,500, the full amount he was seeking. That brought the total award to $67,172 plus interest.

For more information, see Mr. D. v. Path General Contractors and another, 2023 BCHRT46.

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