Migrant workers face ‘unconscious bias’
WSIB programs don’t serve needs of seasonal workers, lawyer says
A Jamaican migrant worker who was permanently injured in a workplace accident had his benefits cut off after being told he could earn a living as a “shoe shiner,” according to a case under dispute at the provincial compensation board.
The decision currently under appeal is an example of unconscious bias and racism at play, according to the worker’s lawyer, Kendal McKinney. It also brings into question the fate of migrant workers who may be left with permanent impairments after battling COVID-19.
“These are second-class workers,” McKinney said. “These systems that are supposed to take care of them are nothing but Potemkin villages. And, morally, I’m outraged.”
In the case of McKinney’s client, the appeal arises from a late 2015 accident at a food processing plant in southwestern Ontario that left the worker with “catastrophic” injuries to his right hand, wrist and forearm, according to submissions to the Workplace Safety and Insurance Board.
The Star is not naming the worker because he is still returning seasonally to work for the employer where the accident took place, undertaking modified duties because of his injuries.
The problem, said McKinney, who took on the case pro bono, is not so much with his employer — but with what happens when the worker returns home each year.
In his off-season in Jamaica, the worker had his own barber shop and did construction on the side, both jobs that are now out of the question because of his injuries.
Initially, the WSIB approved a retraining program for the worker in late 2017 as a truck and forklift driver, as is the right of injured workers in the province who are left with a permanent disability after a workplace accident.
The solution seemed like a win all around, McKinney said. There was plenty of off-season work available as a truck driver in Jamaica, and the worker’s Canadian employer could make use of his forklift accreditation.
But the training didn’t get off its feet before the worker was repatriated to Jamaica; like all seasonal agricultural workers, he does not have permanent status in Canada.
When workers sustain a permanent injury on the job, they are entitled to long-term lossof-earnings benefits if they can no longer work in a job that pays as much as their previous one. But in this case, the WSIB cut off those payments in 2019 and denied future retraining because it said the worker could find equivalent employment in a variety of other fields, including “fur storage attendant” and “shoe shiner.”
McKinney called the board’s proposed alternative occupations demeaning — and an example of “unconscious bias.”
“We’ve got these low-status, low-paid, low-skilled jobs that are vestiges from a much more explicitly racist past,” he said.
“I just told a Black Jamaican man who is used to being the breadwinner for his family and now has a buggered-up right arm that he can go be a shoe shine boy? This is how systemic racism works.” When McKinney began the appeal process last year, the board said that migrant workers who have returned to their home countries “are not able to participate” in the retraining services that injured workers are usually entitled to in the province.
Christine Arnott, a spokesperson for the WSIB, said when workers cannot return to their pre-injury jobs, legislation requires the board to determine loss-of-earnings payments to be based on what kind of alternative jobs are deemed “suitable and available” to the worker.
The board relies on an “adjudicative advice document” for accidents involving seasonal agricultural workers. That document instructs decision-makers to look at “employment available for the worker in the local Ontario labour market.”
“This includes any necessary retraining and subsequent decisions regarding loss of earnings,” Arnott said.
But critics have long warned that the policy makes no sense because seasonal agricultural workers’ ability to be in Canada is tied to working at a single employer; they are not able to seek work with another employer and they cannot gain permanent residency through the program, which would allow them to do so.
In 2010, Toronto-based legal clinic Industrial Accident Victims’ Group of Ontario said in a submission to a Ministry of Labour panel that there were “serious concerns that many partially disabled migrant workers are deported and cut off benefits” before accessing the rights they were entitled to on paper.
“We’ve got these low-status, low-paid, low-skilled jobs that are vestiges from a much more explicitly racist past.”
KENDAL MCKINNEY
In 2017, the WSIB’s independent appeals tribunal ruled the board had “abrogated its legal obligations” when it slashed Jamaican migrant worker Michael Campbell’s benefits by claiming he was capable of finding alternative work as a cashier in Ontario after a farm injury.
The tribunal ordered the board to reverse that decision because the worker had returned to Jamaica, had only basic literacy skills and had lost his legal right to live and work in
Canada. As a tribunal decision, the ruling was only binding in Campbell’s case.
With more than a thousand migrant workers in Canada diagnosed with COVID-19, McKinney said there is fresh urgency around the issue of what kind of long-term support is available through workers’ compensation. There are many unknowns — but mounting concern — over the long-term health impacts of COVID-19. McKinney said if workers were to experience lasting lung damage, they may struggle to return to physically demanding farm labour in Canada — or may simply never be recalled by their employer.
“They’re going to go home, they’re not going to get any retraining. They’re going to get 12 weeks of loss-of-earnings benefits,” he said.
“And then the system will cut them loose.”
Arnott said the decision on whether migrant workers can remain in Ontario so they can access retraining services “falls under federal jurisdiction.”
The federal government has pledged to make changes to its temporary foreign worker programs, including increased inspections, but has not said whether it will give migrant workers permanent status in Canada as long demanded by advocacy groups.
In a letter sent in early June to the provincial government, a group of health experts and academics noted that migrant workers’ precarious immigration status means they can be repatriated “at any moment” and calls for “sufficient and continuous income support” for those diagnosed with COVID-19.
McKinney has also made an application to the Human Rights Tribunal of Ontario on behalf of his client claiming “discrimination against ‘repatriated’ foreign workers, and discrimination on the basis of racial stereotype.”
The application argues injured migrant workers are, in practice, receiving “different and lesser” service than other injured workers.
The matter has been deferred until the WSIB appeal is resolved.
The worker, who is back in Ontario for the season, told the Star he can survive off his earnings in Canada for two months of the off-season in Jamaica, “until I am broke (and) have no money to buy food or pay bills.”
“I have to take loan money and pay it back when I come back to Canada,” he said, adding that the case has left him “angry.”
“I would like for every injured migrant worker to be properly compensated and retrained for a suitable job.”
LAWYER