Refusal to extend work permit of foreign worker with cancer was discrimination
A British Columbia couple must pay a former nanny more than $45,000 for discrimination after they declined to extend her work permit after she took time off for cancer treatment.
The worker was a native of the Philippines who was a stay-at-home parent with five children. When her husband passed away, her family experienced financial pressure, so she applied to work as a caregiver in BC under Canada’s Temporary Foreign Worker Program (TFWP).
The worker was hired by a couple, Mr. and Mrs. Shimmura, to be a full-time nanny and caregiver for their three children. The Shimmuras filed a Labour Market Impact Assessment (LMIA) with Service Canada to employ the worker, which was conditional upon the worker obtaining a valid work permit. Immigration, Refugees and Citizenship Canada (IRCC) granted the worker a work permit that allowed her to work only for the Shimmuras as their nanny.
The worker began her position at the beginning of July 2018 under a two-year employment contract. In April 2020, the Shimmuras renewed the employment contract for another two years under the condition that the worker maintained a valid work permit. The worker put in 40 hours per week at BC’s minimum wage.
Cancer diagnosis
The worker had a good relationship with the Shimmuras and things went well. However, in November 2020, the worker was diagnosed with cancer. When she told the Shimmuras, they told her that she needed to focus on her recovery and not work anymore. They refused to allow her to return to work.
While the worker was undergoing treatment, she asked the Shimmuras to extend her work permit three times. According to the Shimmuras, the only reason that the worker didn’t return to work for them was because she was unable to because of her health issues.
The worker repeatedly told the Shimmuras that she wanted to come back to work as soon as possible, but she asked for them to issue her a record of employment (ROE) so she could apply for employment insurance medical benefits. The ROE indicated that the worker wasn’t returning to work, but the worker didn’t question it.
The worker’s work permit expired on April 21, 2021, and their lawyer told them that the worker no longer qualified for a work permit because she had not been continuously working for them. They declined to extend her work permit, which was specific to working only for them.
Stress over immigration status
The worker was upset and worried about not being able to support her family. While she was trying to recover, she had to divert time and energy to restoring her work permit and pay a fee for it. She searched for a new employer, found one, and had to wait for Service Canada to approve the new employer’s LMIA application. The worker eventually was able to start work with her new employer in December 2021.
The worker made a human rights complaint alleging that the Shimmuras discriminated against her in employment based on her disability, contrary to the BC Human Rights Code.
The Shimmuras maintained that the worker was unable to work because of her cancer diagnosis and they could not extend her work permit because she no longer qualified.
The BC Human Rights Tribunal noted the three-part test for discrimination – the worker must have a physical disability protected by the code, she experienced and adverse impact related to her employment, and her disability was a factor in the adverse impact.
Diagnosis and treatment a disability
The evidence was that the worker’s cancer required six cycles of chemotherapy that was effective and led to surgery not being necessary. From November 2020 to April 2021, she experienced symptoms such as pain in her abdomen and back, nausea related to the chemotherapy, weakness, and an inability to sleep. By April, she was feeling better and a nurse practitioner reported that she could go about her normal daily activities.
The tribunal found that the worker’s cancer diagnosis, treatment, and related symptoms constituted a disability within the meaning of the code.
The tribunal also found that the Shimmuras did not terminate the worker’s employment after they became aware of her diagnosis in November 2020. The ROE may have mistakenly said that the worker wasn’t coming back to work, but this didn’t indicated a termination at that time, the tribunal said.
However, the Shimmuras did terminate the worker’s employment when they declined to extend her work permit, as her employment was conditional on a valid, employer-specific work permit, said the tribunal. This caused her to lose her immigration status in Canada until a new work permit was issued.
Adverse impacts
The tribunal found that the loss of the worker’s immigration status, and what she went through to find new work and a new permit were adverse impacts she experienced in her employment. Since the only reason that the Shimmuras didn’t extend the worker’s work permit was her disability, then the disability was a factor in the adverse impact – thus completing the test for discrimination.
Although the Shimmuras claimed that a lawyer advised them that the worker wasn’t eligible for a work permit because she hadn’t been continuously employed, they didn’t provide any evidence showing actual work permit rules that made continuous employment a bona fide occupational requirement to renew a work permit. Even if there was such a requirement, it was possible that it would be subject to extenuating circumstances such as the worker’s, the tribunal said.
Without the justification of a bona fide occupational requirement, the tribunal determined that the Shimmuras discriminated against the worker based on her disability. The Shimmuras were ordered to pay the worker wages from May 2021, when she was ready to return to work, to when she started her new job in December that year, plus expenses she paid to restore her work permit. Given the vulnerability of the worker’s position as a low-paid temporary foreign worker, the tribunal also determined that $25,000 in damages for injury to dignity was appropriate, putting the total award at $45,780.
See Bayongan v. Shimmura and another, 2023 BCHRT 27.
