A man who has accused a Vernon company of discriminating against him based on a disability and failing to accommodate him after he was diagnosed with complex sleep apnea has won the right to a BC Human Rights Tribunal hearing.
Tolko Industries applied to have the case thrown out, but in a June 28 decision, the tribunal ruled that the case should proceed to a hearing, with tribunal member Ryan Goldvine not pursuaded that the complaint had “no reasonable prospect for success.”
Paul Senger launched the case against Tolko. The former Lavington sawmill employee claims Tolko refused to allow him to return to work even after his doctor had given the OK for him to return.
Senger began working at Tolko’s Lavington sawmill as a saw filer in 2013, where he was responsible for maintaining and repairing saws.
In 2018, Tolko investigated whether Senger was following safety procedures with the specific concern that he was not properly locking out equipment and ensuring a “buddy” was present during the lockout process.
Senger was placed on a paid leave of absence and underwent an independent medical exam by an occupational therapist. He was then placed on short-term disability benefits after the results of the exam precluded him from attending work.
It was shortly thereafter that Senger was diagnosed with complex sleep apnea.
According to the tribunal’s decision, Senger’s doctor cleared him to return to work gradually and with no graveyard shifts in late 2018.
Tolko then arranged for a second medical exam “to ensure that Mr. Senger was capable of safely performing the duties required of him as a saw filer,” the decision reads.
Based on the results of the second exam, Tolko concluded Senger remained unfit for his job, and advised him that there were no other suitable positions available for him that met the restrictions and limitations identified in the second medical exam.
Senger was advised to apply for long-term disability benefits.
In June 2019, Senger’s physician gave the opinion that he had “made a remarkable recovery” and “could return to gainful employment at his previous position as a saw filer.”
This prompted a third medical exam in September of that year, where Tolko sought to address what it called inconsistencies between the first and second exams and the opinion of Senger’s physician.
With the results of the third occupational therapist’s report, Tolko concluded that Senger was still incapable of performing the duties of his role safely, while again saying that it had no suitable positions for Senger to transition to.
Senger argues that it was “unreasonable, and discriminatory” for Tolko to ignore his doctor’s recommendations in favour of the occupational therapist’s reports.
He argued Tolko failed to accommodate him by exploring all of the jobs that could have been available to him at the mill, while Tolko argued it took all reasonable steps to accommodate him short of “undue hardship.”
The tribunal said Tolko must prove it would have been an undue hardship to accommodate Senger.
“I find without a hearing on the merits, in which evidence can be tested and facts found, the question of whether the Respondent could not have accommodated Mr. Senger short of undue hardship cannot be answered,” the decision reads.
“While the caselaw makes clear Mr. Senger is not entitled to a perfect solution, there is nothing before me that suggests anything other than vacant, already defined, positions were explored.”
Senger hasn’t won the case yet, but Tolko’s application to have the case tossed has been dismissed and the case will now move on to a hearing.