CHRISTOPHER GULY
A huge employment standards case involving unpaid
wages in B.C. has spawned a
massive human rights complaint
and raised allegations over the
systemic failure of both the provincial and federal governments
to uphold workers’ rights.
In January, B.C.’s Employment Standards Branch (ESB)
ordered Khaira Enterprises Ltd.,
a tree-planting company based
in Surrey, to pay over $220,000
to 57 tree planters who worked
for the company between March
and July 2010.
On Feb. 4, the ESB rendered
a new decision to reflect more
accurately days worked, resulting
in a new amount of $236,800.52
for unpaid overtime, unauthorized deductions for food and
lodging, unpaid wages, holiday
pay, annual vacation pay, compensation for length of service
and accrued interest.
The ESB also ordered Khaira
(pronounced Ki-ra) to pay
$3,500 in administrative penalties for contravening at least
seven sections of the provincial
Employment Standards Act.
“You don’t normally see such
a large wage assessment and so
many people involved in an
employment standards case,”
explains Michael Howcroft, a
partner in the
labour and
employment
group at Blake,
Cassels & Graydon LLP in
Vancouver.
“And some of
the conditions
Howcroft
cited appear to be so horrific
that the case has been getting a
lot of media attention.”
Horrific is a word Ros Salva-
dor also uses to describe the
continuing plight of the tree
planters. A lawyer with the Brit-
ish Columbia Public Interest
Congo but who are now either
permanent residents or Can-
adian citizens.
Despite the Jan. 17 ESB determination and subsequent
reissued decision ordering
Khaira to pay the outstanding
wages and interest, none of the
employees have received any of
the money. The company, which
was found to have issued pay-cheques that bounced, has until
March 14 to file an appeal with
B.C.’s Employment Standards
Tribunal and it is believed that
owner-operators Khalid Bajwa
and Hardilpreet Sidhu will do
so, based on what they told the
media.
Salvador says that although
many workers qualify for
employment insurance (EI),
Service Canada — which handles
EI for Human Resources and
Skills Development Canada—
has refused to pay them any
benefits, relying on Khaira’s
“drastically” under-reported
hours despite ESB findings that
show the workers fulfilled the
insurable hours required.
Salvador
Under the current system,
Service Canada only accepts the
employer’s version of the number of hours worked. In situations where an employer has
provided false information, only
the Canada Revenue Agency
can correct it, “all of which is a
very time-consuming process,
leaving Canadians without any
access to their EI entitlements
for many months,” says Salvador. In this case, many of the
tree planters who qualify for EI
have not received any benefits
for six months and counting.
Last October, Salvador was
told workers could receive a
provisional EI amount while
Service Canada conducted an
investigation. Four months
later, Service Canada “changed
their story” and will now only
pay interim EI benefits when
no record of employment
(ROE) is available.
“Many of the workers are get-
ting nothing from EI, and sev-
eral are homeless. Most of them
are living in absolute poverty.”
Salvador believes that in fail-
ing to pay the tree planters EI
benefits, the federal government
is violating the life, liberty and
security of person provision (s.
7) of the Canadian Charter of
Rights and Freedoms.
Meanwhile, the BCPIAC has
filed a human rights complaint
with the B.C. Human Rights Tribunal against Khaira and its
director-officers Bajwa and
Sidhu, alleging the workers were
subjected to, in Salvador’s words,
“horrific” racism and sexual
harassment.
But while Khaira is accused
of forcing workers to endure
“inhumane” and slave-like con-
ditions, Salvador says the B.C.
government failed to protect the
workers’ rights despite the fact
that officials with the Ministry of
Forests, Mines and Lands were
present when the tree planting
began last March on Texada
Island, B.C.’s largest Gulf island
in the Strait of Georgia.
“They saw people overworked—being forced to work
extremely long hours with few
breaks or days off — and failed to
take adequate action,” she says,
adding that the workers often
slept in crammed storage containers with no ventilation and
were forced to drink untreated
water, and eat expired or inadequately cooked food.
In his ruling, ESB delegate
Karpal Singh noted concerns
regarding the hygiene and over-
all living conditions at the camp-
sites, where most employees
stayed. He wrote that the sites
were “grossly unsatisfactory and
unacceptable” and that bathing
and toilet facilities were “grossly
inadequate.”
Salvador says the Ministry
of Forests allowed
this situation to
continue until
July 2010
when govern-
ment officials
finally shut
down Khaira’s
operations —
at the time,
near Golden, a
town in southeast-
ern B.C. — “due to the
deplorable conditions.”
On July 26, the gov-
ernment cancelled
the company’s
contract and
Khaira forfeited its security
deposit, reportedly worth
$70,000. Last September, the
company was also banned from
bidding on all government silvi-
culture contracts for two years.
Earlier this month, B.C. For-
est Safety Ombudsman Roger
Harris—an appointee of the
non-profit B.C. Forest Safety
Council — announced that he
will conduct a review of the
B.C. silviculture camp system,
prompted by revelations of
Khaira’s “squalid camp condi-
tions.”
“The Khaira situation is not
typical of the industry, but I have
received calls about health and
safety conditions at silviculture
camps in the past,” said Harris in
a statement. “It appears that a
small number of contractors and
operators are not acting in the
best interests of workers and
these types of situations con-
tinue to occur.”
Howcroft says that beyond
the human tragedy involved, the
case is unique in terms of its
sheer breadth.
“The initial complaint
involved one of the sites,
and having commenced
an investigation, the
Employment Standards Branch
expanded it to the
company as a whole
given the extraordinary circumstances,”
said Howcroft.
“While the ESB
has the power
to do that, it’s
very rare for it
to take that
initiative,” he
explains. n STANISLAV KOMOGOROV / DREAMSTIME.COM
Ambiguity in dress policy will not by itself support finding of discrimination
The dress code
Dress
Continued From Page 10
Audmax had a policy requiring
its employees to wear “business
attire.” Saadi is an observant Muslim and wore a hijab to cover her
hair. In addition, she adhered to
the principle of modest dress and
behaviour. At the OHRT, Saadi
gave evidence that a meeting was
held where the employer objected
to her wearing an ankle bracelet
that “jingled,” open-toed “slippers,”
clothing that was described as a
“tight short skirt and leggings” and
a variant of the traditional hijab
described as a “cap.” Moreover,
Saadi was uncomfortable with certain dress suggestions which
would expose her arms and legs.
The OHRT found that objections to the ankle jewelry and
footwear were not related to any
protected ground under the
Human Rights Code. However,
the objections concerning
Saadi’s clothing and hijab did
breach the Code.
On review of the dress code
policy, the Divisional Court came
to the opposite conclusion. While
the dress policy required employees to wear business attire and
forbade jeans and running shoes,
nothing inherent in the policy
would conflict with Saadi’s religious requirements to dress in a
modest fashion. For example,
Saadi likely would have complied
with the dress code and her religion by simply wearing a longer
skirt and less tightly fitting pants.
Concerning Saadi’s particular
variant of hijab, the Divisional
Court held that the OHRT failed to
consider whether it was possible
for Saadi to comply with the dress
code without compromising her
religious requirements. There was
nothing in Saadi’s religion that
required her to wear the variant of
hijab on the day in question. She
had been wearing a traditional
hijab every day for six weeks,
remaining fully consistent with the
dress code. Thus, while her sense
of style may have been affected, her
religious rights were not.
The microwave policy
The Divisional Court also
reversed the OHRT’s ruling on
the microwave policy. Audmax
had a workplace environmental
sensitivity policy which included
a ban on reheating foods with a
strong odour. While the OHRT
found that the policy was a “mov-
ing target” and impossible to
comply with because of vagueness
concerning the kinds of foods that
would fall under the policy, the
Divisional Court held there was
simply not enough evidence to
suggest that Saadi was disciplined
for her use of the microwave,
what the violations actually were,
and how they were connected to
ethnic origin or ancestry. The
decision stands for the propos-
ition that while ambiguous stan-
dards can lead to discrimination,
ambiguity in a policy itself will
not be sufficient to support a find-
ing of prohibited conduct.
The key question that the
OHRT should have considered is
whether an employer’s enforcement or interpretation of a policy
conflicts with what an employee is
required to wear as part of his or
her religion. The ruling also affirms
the view that ambiguous policies
on their own do not provide
enough thrust to make out a prima
facie case for discrimination.
The OHRT decision was set
aside and remitted to the tribunal
for a new hearing. n
Soma Ray-Ellis is a partner
and co-chair of the Employment
and Labour Group at Himelfarb
Proszanski LLP in Toronto. She
is also the author of Halsburys
Laws of Canada — Discrimination and Human Rights and the
Federal Equity Manual. She
thanks Daniel Siu, a student-at-law at the same firm, for his
assistance with this article.
