A complaint against the City of Burnaby will go to a full hearing after the B.C. Human Rights Tribunal rejected a bid to dismiss claims the city unfairly demoted an employee because of her allergies.
This is the second complaint Tracy Klewchuk has made against the city over allegations of mistreatment due to her allergies to latex, garlic and onions. Parts of her first complaint against the city were dismissed on April 23 last year and again in a review of that decision published in January this year.
In that complaint, Klewchuk claimed the city reduced her hours and repeatedly exposed her to latex, and a supervisor gave her a bad performance review as a result of her allergies, among other allegations. While some allegations in that complaint will be heard, the tribunal shot down others, saying Klewchuk failed to provide adequate details.
In the latest complaint, filed on April 29 last year, Klewchuk raises new claims, including that the city demoted her without reasonably trying to accommodate her allergies.
Klewchuk, who has worked with the city for nearly 30 years, began working as a program leader with children in after-school programs in September 2014. The programs are run through the city’s parks and recreation department but are held at the schools.
After giving the city a short doctor’s note in March 2016, saying she has a “severe latex allergy,” the city asked Klewchuk to have her doctor complete a more detailed questionnaire.
That questionnaire was completed in June 2016, but the city still found it didn’t have enough information. Klewchuk’s doctor completed another questionnaire in April 2017, but the city still felt it didn’t know enough about the nature or severity of her allergies.
In September 2017, the city sought to create a plan for Klewchuk, concerned that it did not have control over the environments at the schools, where her programs took place.
If she were exposed to allergens, that could mean she would need to leave the workspace, leaving children unattended or only attended by an assistant program leader. The latter would still be an issue, according to the ruling, because assistant leaders do not have CPR or first-aid training, potentially exposing the city to liabilities.
An October 2017 incident increased those fears, when Klewchuk had an allergic reaction after seeing someone blow up a balloon, according to the ruling. In a WorkSafeBC report, she described her throat tightening, shortness of breath, feeling light-headed with a severe headache, feeling physically weak and feeling disoriented, among other symptoms.
“From the city’s perspective, this incident validated their concerns about Ms. Klewchuk working independently as a program leader,” tribunal member Devyn Cousineau wrote in her decision.
Klewchuk underwent a medical review overseen by the city. Klewchuk’s family doctor did not have substantive information about her allergy, referring the city to her allergist, who hadn’t seen Klewchuk in 17 years.
An independent medical examination by an allergist, completed in June 2018, determined Klewchuk had a moderate latex allergy and mild onion and garlic allergies, according to the ruling. The allergist said Klewchuk should immediately leave the area if exposed to allergens.
The city reportedly only assigned Klewchuk to lower-paid, entry-level assistant program leader positions, according to the ruling. And Klewchuk claims this unreasonably impacted her employment.
The city sought to have Klewchuk’s complaint dismissed on two points – that she couldn’t prove an adverse impact on her employment and that its decisions were made based on a “bona fide occupational requirement.”
Cousineau declined both arguments, saying the city did not make its case that its arguments would be reasonably certain to win in a full hearing.
