Update on April 7, 2022: The Workers' Compensation Appeal Tribunal has denied Houg's appeal.
A former employee of Gallant Enterprises — an independent contractor that operates a sawmill in the UBC Malcolm Knapp Research Forest — is alleging discrimination in employment on the basis of physical disability and family status through the BC Human Rights Tribunal.
Michael Houg, a Gallant employee from May 2017 to May 2019, is arguing in the tribunal that Gallant Enterprises refused to accommodate his injury or parenting schedule, and eventually terminated him. Houg is alleging that this discrimination is occurring after he reported the behaviour of an employee who he alleged made several racist comments and hit him. Gallant’s lawyer said that this would not be relevant to the human rights case.
Gallant employees argued in tribunal documents that they prevented Houg from working late — his adjusted schedule in order to accommodate his child care duties — after a saw almost derailed under Houg’s watch.
“We do not believe there is any discrimination against Michael Houg and we are quite surprised by this complaint,” Gallant owner Doug Woods wrote in tribunal documents.
According to a timeline in Houg’s tribunal submission, on April 12, 2019, Houg’s supervisor told him they were no longer going to accommodate his parenting schedule. On May 12, 2019, Woods told him there was no work for him, so he shouldn’t come in that day. Two days later, Houg said Woods told him he shouldn’t come in “indefinitely” as there was no light work duty available.
The hearing was intended to begin today, but it has been adjourned until March or April 2022.
Gallant’s lawyer Rose Keith, associate counsel at Harper Grey LLP, said the reason for the delay was because Houg was not available until mid-2022. Due to the number of witnesses, the hearing had to be extended past the scheduled three or five days, and Houg told The Ubyssey he didn’t have the ability to take an extra week off of work in August to attend it.
Allegations of discrimination
The BC Human Rights Tribunal will be testing if there was discrimination in this case based on family status and physical ability, characteristics protected under the BC Human Rights Code.
Family status discrimination can include “parental or other family obligations where there is a serious interference with a substantial parental or other family duty or obligation of the employee.”
In this case, Houg, a single parent with shared custody at the time, said he needed to start work late whenever he needed to bring his child to daycare, something that both parties in the case admit was agreed to when he was hired. When Houg had his child, he would get to work about an hour late at 7:15 a.m. and work an hour extra after 3:30 p.m., the end of his typical workday.
He alleged that this changed in April 2019 after the saw derailment. Houg maintains that he was never given a clear reason as to why he wasn’t able to work late anymore, and alleged that other employees worked late and alone when he wasn’t able to. The tribunal denied Houg’s requests for gate records to prove that other employees were given privileges he was denied.
In tribunal documents, Woods wrote that “Gallant Enterprises Ltd. could not accommodate Michael’s schedule anymore because of his health, inability to do the job he was hired for and safety concerns when working after hours to give him a full shift.”
Houg will have to prove that he does have protected grounds for family status, that he sought accommodations from his employer and that they failed to provide them.
Meanwhile, physical disability “includes physical conditions that affect or are seen as affecting a person’s abilities” — in this case, Houg’s injury at the time. Due to what started as whiplash and ended up being bulging discs in his neck, he said he was ordered by his doctor to not lift more than 30 pounds. He initially reported his injury in January 2019 a couple weeks after it happened and provided a doctor’s note when asked by Woods three months later in April.
In terms of disability, the tribunal looks at “the person’s physical or mental impairment, if any; the functional limitations, if any, which result from that impairment; and the social, legislative or other response to that impairment and/or limitations.”
Woods wrote in Gallant’s filings that the company “did accommodate Michael by giving him light duty work such as, sharpending [sic] planter sticks, resaw work and green chain work. After receiving his doctor’s note that he could not lift more than 30 lbs, we found little work that he could do within these limitations.”
Houg maintains that there was work available that he could have done. In the hearing, he will have to prove that he had a disability, that he sought accommodations and that his employer failed to provide them.
Keith said it was unlikely that the incident with the other employee or the saw derailment would come up in the tribunal hearing, as she said they would not be “relevant” to the question of whether Houg was discriminated against by Gallant. She said the accusations of bullying from the other employee would fall under WorkSafe BC legislation.
Houg filed a claim to WorkSafe BC in regard to bullying and harassment he endured at the job, but it was denied. He’s since appealed the decision to the Workers Compensation Appeal Tribunal, and it was accepted on the grounds that WorkSafe didn’t have an accurate understanding of the series of events.
While Keith maintained the saw derailment does not necessarily relate to the human rights complaint, she commented on the incident.
“When the saw derailed it was recognized to be a very serious incident by the employer and one that could have resulted in significant injury or even death,” Keith said. “It resulted in the employer making certain changes to policy.”
However, Houg said the saw derailed because it wasn’t properly maintained and was missing a guard from one of its corners. The tribunal denied Houg’s request to find out more information about the make and model of the bandsaw in order to prove that it was in poor condition.
‘I don’t want this happening … to anyone else’
As a remedy, Houg is asking that Gallant Enterprises implement discrimination training administered by an outside party for management and employees.
He is also asking for a letter of recommendation, as he said he was a good employee before he was allegedly discriminated against. Third — but Houg said he would take the first two remedies over this — is monetary compensation. He’s asking for lost wages and compensation for injury to dignity.
“I came out of this okay. I can still support my family, I am still able-bodied and it didn’t impact me as much as say, someone who is more vulnerable would be impacted,” Houg said. “I don’t want this happening anymore, to anyone else.”
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