Update: The original decision of the B.C. Human Rights Tribunal involving Yoshiko and Yoshiki Shimmura and complainant, Marites Bayongan, was released March 22, 2023; it was overturned Sept. 5, 2024. The new decision was reached after tribunal member Amber Prince noted the Shimmuras were unaware their former legal counsel did not file closing submissions on their behalf. As a result, the Shimmuras say they did not have a fair opportunity to be heard prior to the tribunal issuing the original decision. The Shimmuras say that this unfairness can only be corrected by setting aside the original decision and re-opening the hearing of the complaint. Prince: “In these exceptional circumstances, I allow the Shimmuras’ application for reconsideration. As a result, the original decision is set aside and will be reopened.” Bayongan has since withdrawn her complaint. The case is now closed.
Original article:
B.C.’s Human Rights Tribunal has ordered a Metro Vancouver couple to pay $47,580 to an immigrant nanny who was fired after she was diagnosed with cancer.
“I find that Yoshiko Shimmura and Yoshiki Shimmura discriminated against Marites Bayongan in employment on the basis of her disability,” tribunal member Amber Prince said in the March 22 decision.
Of the total, $25,000 is an injury-to-dignity award.
Prince said Bayongan began working full-time as a caregiver for the couple’s three children in July 2018, under a federal temporary foreign worker program.
Prior to moving to Canada and working for the Shimmuras, Bayongan was a stay-at-home parent to her five children in the Philippines. However, Prince said, her family’s financial security was threatened when her husband passed away.
As a result, she sought employment in Canada to support her kids.
Bayongan's contract with the Shimmuras was for two years. It was renewed for another two years in April 2020. A condition of her second contract was that she obtain and maintain a valid work permit, Prince said.
“There is no dispute that Ms. Bayongan worked 40 hours per week for the Shimmuras. Her rate of pay under the April 13, 2020 contract was $14.42 per hour,” tribunal documents state.
While working for the Shimmuras, Bayongan began to experience health issues and, in November 2020, was diagnosed with cancer.
Bayongan alleged that when the Shimmuras learned of her cancer diagnosis, they terminated her employment, did not allow her return to work and refused to extend her employer-specific work permit. She needed that document to maintain her Canadian immigration status.
Bayongan alleged the couple’s conduct was employment discrimination based on disability and contrary to the Human Rights Code.
The Shimmuras denied discriminating. They alleged they did not terminate Bayongan’s employment or refuse to allow her to return to work. Rather, they said, Bayongan was unable to work because of her diagnosis. As such, they said, as she was unable to work, she no longer qualified for a work permit. As a result, they could not extend her work permit.
“I find that the Shimmuras discriminated against Ms. Bayongan, based on her disability, by not extending her work permit, and as a consequence, terminating her employment,” Prince said.
“In some ways, there is no question that they were supportive and empathetic to Ms. Bayongan. Nonetheless, the Shimmuras’ conduct resulted in significant hardship to Ms. Bayongan, as a temporary foreign worker struggling with cancer,” Prince said.
Still, Prince noted, even after Bayongan became ill, texts indicated a possible return to work, with exchanges indicating an understanding she was on a temporary leave of absence.
Meanwhile, Shimmura gave evidence that she did not extend Bayongan’s work permit on the advice of a lawyer and an accountant.
Still, Prince found Bayongan’s situation to be a disability.
“There is no question that Ms. Bayongan’s condition was life-threatening,” Prince said. “This is as severe as a condition can be.”
The tribunal ruled: “There is no dispute that Ms. Bayongan needed to extend her work permit in order to: maintain valid immigration status in Canada; continue to work in Canada; and have access to public health-care coverage through B.C.’s Medical Services Plan.
“I accept without reservation Ms. Bayongan’s evidence that as a result of the discrimination she felt depressed, abandoned, and distressed about losing her immigration status. She worried about how she was going to pay her own rent and support her family.”
