Kayembe v. Carl Zeiss Canada Ltd., 2026 BCHRT 130
Date Issued: May 27, 2026
File: CS-006761
Indexed as: Kayembe v. Carl Zeiss Canada Ltd., 2026 BCHRT 130
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Kato Kayembe
COMPLAINANT
AND:
Carl Zeiss Canada Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Shannon Beckett
On his own Behalf: Kato Kayembe
Counsel for the Respondent: Matthew Allard
I INTRODUCTION
[1] This decision is about whether to dismiss Kato Kayembe’s complaint without a hearing.
[2] Mr. Kayembe says his former employer, Carl Zeiss Canada Ltd. [Zeiss], discriminated against him based on his religion when it introduced a policy that required him to become vaccinated against COVID-19. He says he has a religious objection to receiving the vaccine and requested an exemption from the policy, but that Zeiss refused and eventually terminated his employment.
[3] Zeiss denies discriminating, and says the complaint should be dismissed because it has no reasonable prospect of success, pursuant to s. 27(1)(c) of the Human Rights Code [Code].
[4] Resolution of this application turns on whether Zeiss is reasonably certain to prove it satisfied any duty to accommodate Mr. Kayembe. For the following reasons, I find that it is. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II Application to file additional submissions
[5] On June 11, 2025, after submissions had closed on the dismissal application, Mr. Kayembe filed an application seeking to file a sur-reply. Mr. Kayembe attached a five page sur-reply, as well as six pages of evidence that he characterized as his client “leads and opportunities” at Zeiss before he was terminated.
[6] I did not find it necessary to seek submissions from Zeiss in relation to this application. I allow Mr. Kayembe’s application and I have considered his sur-reply in deciding the dismissal application. Although Zeiss has not had a chance to respond to Mr. Kayembe’s sur-reply, given my ultimate finding that Mr. Kayembe’s complaint has no reasonable prospect of success, Zeiss has not been prejudiced.
III BACKGROUND
[7] Zeiss is a medical technology company. Mr. Kayembe started working for Zeiss in February 2021 in the position of Account Manager – Micro Surgical [Account Manager]. Mr. Kayembe’s job involved selling optical microscope equipment to surgeons and oncologists located in various hospitals and other medical settings in Vancouver.
[8] In September 2021, BC’s Provincial Health Officer [PHO] announced that all people working in health care facilities would have to be fully vaccinated by October 26, 2021. On October 14, 2021, the PHO issued an order[1] requiring certain people working in healthcare facilities to be fully vaccinated by October 26, 2021, unless they had a medical exemption granted by the PHO under the Public Health Act.
[9] On October 5, following the PHO’s announcement about the upcoming vaccine mandate, Providence Health Care [Providence], one of Zeiss’ primary clients and the operator of numerous medical facilities in Vancouver, advised Zeiss that based on the PHO order, effective October 26, Providence would require all of its staff and contractors to be vaccinated. Providence advised Zeiss that it understood the PHO’s order applied all Zeiss employees who would be attending Providence sites/facilities.
[10] In its application, Zeiss provided an affidavit from Abrarulhaq Esop, the Head of Medical Technology/General Manager at Zeiss. At the relevant time, Mr. Esop was the Regional Director, Western Canada, and the person Mr. Kayembe reported to. In his affidavit, Mr. Esop explains that based on the PHO order and Providence’s communication to Zeiss about its requirements, his and Zeiss’ understanding was that all of Zeiss’ staff had to be vaccinated against COVID-19 in order to visit any customer healthcare facilities including Providence sites.
[11] Following the notification from Providence, on October 15, 2021, Zeiss introduced its own vaccination policy [the Policy], which required all staff in “customer-facing positions” – meaning staff who were required to enter client sites – to comply with each client’s vaccination policy. The Policy explained that their clients’ vaccination policies either currently did, or shortly would, require vaccination by a certain date to enter client premises. As such, the Policy effectively mandated vaccination for all employees in customer facing positions.
[12] The Policy provided for “Accommodation in Accordance with the Human Rights Code”, and specified that employees seeking accommodation would be required to provide a “letter of exemption” supporting their request for medical exemption, or other relevant documentation requested by Zeiss. The Policy further advised that employees seeking accommodation were required to participate in the accommodation process, including by providing documentation to establish the existence of protected grounds and related restrictions.
[13] The Policy advised that in some cases a refusal to become vaccinated could impact a person’s employment, including the possibility of termination.
[14] On October 5, 2021, prior to the introduction of the Policy, Mr. Kayembe emailed Zeiss advising that taking the COVID-19 vaccine went against his religion due to his concerns about free will and the use of cells from aborted fetuses in the production of the vaccine. He also raised concerns about the effectiveness of the vaccine and his fear that it could cause him harm, up to and including death, if he took it.
[15] At some point later in October, Zeiss placed Mr. Kayembe on an unpaid leave of absence. Neither party directly addressed the reason for this in their submissions on the dismissal application, but in Zeiss’ response to the complaint it stated:
In or around October 2021 [Mr. Kayembe] ignored [Zeiss’] direction regarding vaccination and attended at a customer hospital site unvaccinated, putting that customer contract in jeopardy. As a result of this insubordinate act and breach of a customer requirement, [Zeiss] placed [Mr. Kayembe] on an unpaid leave until he was vaccinated or sought an exemption from the Policy.
[16] In his affidavit, Mr. Esop says that Mr. Kayembe had attended BC Children’s Hospital to perform a demonstration in an operating room, despite being unvaccinated. He says that this conduct was contrary to Zeiss’ expectations – even before introduction of the formal Policy – that employees would not attend hospital sites without being vaccinated. Mr. Esop states that Mr. Kayembe’s conduct in attending the hospital while unvaccinated caused Zeiss to lose a contract with BC Children’s Hospital.
[17] Mr. Kayembe does not deny that he attended BC Children’s Hospital without being vaccinated, but disputes that it was the reason that Zeiss lost the BC Children’s Hospital contract. Nothing in this decision turns on whether Mr. Kayembe attended BC Children’s Hospital before the introduction of Zeiss’ Policy or whether Zeiss lost a contract as a result.
[18] On October 21, Mr. Kayembe had a telephone call with Angela Stanley, a contracted HR manager for Zeiss. The purpose of the call was for Zeiss to understand Mr. Kayembe’s request for a religious exemption from the Policy. Zeiss submits, and Mr. Kayembe’s evidence supports[2], that during this call, Mr. Kayembe advised Ms. Stanley that he was Mennonite. During the call Ms. Stanley communicated the Policy’s requirement that Mr. Kayembe provide a letter from his spiritual leader in support of his request for a religious exemption. Mr. Kayembe followed up with a letter to Ms. Stanley emphasising his right to religious freedom under the Code, and identifying his view that the Policy violated his religious freedom. He stated his view that requiring him to provide an exemption letter from his church confirming his religious affiliation infringed on his freedom of religion and violated the Code and the Canadian Charter of Rights and Freedoms. He concluded by requesting that his salary be continued while Zeiss decided what further information was necessary for him to be granted a religious exemption.
[19] On October 22, Ms. Stanley responded and advised that because Mr. Kayembe had not yet become vaccinated or provided an exemption letter, Mr. Kayembe would be placed on an unpaid leave effective October 26, and that he was to cease attending customer premises. The letter also referenced the telephone call of the previous day, and said that on the call Mr. Kayembe had advised he was meeting his spiritual leader on October 25 to discuss a religious exemption. The letter advised Mr. Kayembe that to demonstrate his entitlement to an exemption from the Policy, Zeiss required a letter signed by his spiritual leader by no later than October 27, 2021.
[20] Later that day, Mr. Kayembe replied to Ms. Stanley asking her on what basis she was requiring a letter from his spiritual leader. To this email he again attached his October 21 letter requesting a religious exemption.
[21] On October 25, Ms. Stanley wrote to Mr. Kayembe advising that he still had not provided the required information. Her letter also set out information about the Mennonite Church of Canada’s statement in favour of COVID-19 vaccination. In the letter, Ms. Stanley again asked Mr. Kayembe to provide a letter signed by his spiritual leader “confirming your active membership in the constituency and that you hold a sincerely held belief supporting a religious exemption” from the Policy. She advised his unpaid leave would be extended until October 28 to allow him to provide the documentation.
[22] On October 26, Mr. Kayembe responded “I have never stated I was a member of the Mennonite Church in British Columbia”. He further stated that during a previous call, Ms. Stanley had falsely associated him with being a member of the Catholic church. Mr. Kayembe provided a list of the different types of Mennonite denominations, but did not advise which he belonged to. He then reiterated his objection to receiving the COVID-19 vaccine and advised he would provide proof of membership to his church as he believed that was enough to establish sincerely held beliefs.
[23] On October 28, Mr. Kayembe provided Zeiss with a “member information form” from his church. The form indicated that at the time it was signed, he had belonged to the church for 4.5 years, and that he had been baptised in 1996. The form was signed by a church Elder in 2019. He also attached an October 10, 2021 invitation to attend the church’s annual general meeting.
[24] In his affidavit, Mr. Esop deposes that it was not clear to him or Ms. Stanley, from their review of the information, whether Mr. Kayembe was part of the Mennonite religion or some other religious constituency. He further states that the information Mr. Kayembe had provided still did not demonstrate any link between his refusal to become vaccinated and the requirements of his faith. Nevertheless, Mr. Esop says that around that time, him and Ms. Stanley discussed other jobs within the company that Mr. Kayembe would be qualified for that would not require vaccination. He says that the only position that was suitable at the time was a Bilingual Customer Care Coordinator Position, which Mr. Kayembe was well suited for, given his knowledge base and given he was bilingual. Mr. Esop explains that Zeiss did have two inside sales positions, which sold service contracts, that could have been performed remotely. However, he says those positions were not available as they were occupied by two people.
[25] Mr. Esop says that after his and Ms. Stanley’s review of potential positions that could accommodate Mr. Kayembe, he spoke with the hiring manager for the Bilingual Customer Care Coordinator position and she was willing to accept him for that role. He says that as a result, he suggested that Ms. Stanley offer Mr. Kayembe the opportunity to apply for the role.
[26] Later on October 28, Ms. Stanley provided Mr. Kayembe with the job description for the Bilingual Customer Care Coordinator. It appears her email attaching the job description followed a telephone conversation between her and Mr. Kayembe about the position.
[27] On October 29, Mr. Kayembe responded thanking Ms. Stanley for the position offered, but advised that he wanted to “set aside this position for now as I have requested a religious exemption almost a month ago”. Mr. Kayembe advised he felt his exemption request should be accepted as he had “provided all necessary documentation”. He then stated he felt Zeiss’ reaction to his request for religious exemption amounted to harassment, and that he felt it was clear that Zeiss would “do everything in its power to not accommodate anyone religiously”. He concluded his letter by agreeing the position offered by Zeiss was a “great position”, but that he believed an Application Specialist position would be best suited for him.
[28] Later on October 29, Ms. Stanley provided Zeiss’ response to Mr. Kayembe’s October 29 letter and October 28 email. The letter listed Zeiss’ numerous requests for documentation confirming a religious exemption, and advised Mr. Kayembe he had an obligation to participate and engage in the accommodation process in good faith, including by providing the requested letter signed by his spiritual advisor. The letter further clarified that even if/when an accommodation was granted, that would not allow Zeiss to override client vaccination policies. The letter explained that Mr. Kayembe’s request for the Application Specialist role would not be possible because of the requirement of that position to regularly attend client premises, and because there were no available positions in his region. The letter concluded by asking Mr. Kayembe to provide the documentation Zeiss had been requesting, and to consider the customer service role it had offered given that role could be performed remotely and would not require vaccination.
[29] On October 30, Mr. Kayembe advised Ms. Stanley that his pastor would be back on Tuesday (November 2) and he would follow up right after. He again declined to consider the Customer Care position, taking the view that his request for religious exemption needed to be decided before he could “sit down and discuss about any possibilities of accommodating me with my role at this moment”. He again suggested he could perform the Application Specialist role, but have someone else attend client premises. He suggested 70% of his current role could be performed at home and “someone else” could handle special requests. He expressed his desire to be accommodated in “my current or similar role”.
[30] On November 2, Ms. Stanley wrote to Mr. Kayembe explaining that his assessment that he could perform his current role primarily from home was incorrect. She stated:
It was made clear to you from Abrar Essop that you cannot perform 70% of your work from home on a regular basis. During the first part of the pandemic, working from home occurred because hospitals and other institutions prohibited entry to their premises. This is no longer the case. Our customers now require us to attend their sites for support, repair, demonstrations, and attending surgery in the Operating Room when invited by the medical professionals. Further, reassigning the on site customer duties to another Account Manger is not feasible or reasonable as it would involve too much travelling for one person, and customer requirements for each territory are very demanding.
[31] Ms. Stanley went on to state that although Zeiss had invited Mr. Kayembe to meet with the hiring manager with respect to the Customer Care Coordinator role, he refused to do so, even though the position was entirely remote. She again reiterated Zeiss’ request for a letter from Mr. Kayembe’s spiritual leader supporting his claim for a religious exemption, and advised that this was Mr. Kayembe’s “final opportunity” to provide that information and meet his obligations in the accommodation process. She advised that if Zeiss did not receive the requested information by November 8, it would consider disciplinary action up to and including termination.
[32] On November 3, Mr. Kayembe provided Ms. Stanely with his pastor’s name and phone number and told her to contact him directly. He further advised that his pastor would provide a letter by Friday (November 5). He advised that he was appreciative of Zeiss’ attempt to accommodate him in the Customer Care Coordinator role, and that he was he was surprised Zeiss was taking the position that he was refusing the role as “my statement was clearly different”.
[33] Mr. Kayembe never provided Zeiss with a letter from his spiritual leader providing any information about how his religion might impact his ability to take the COVID-19 vaccine.
[34] On November 7, Mr. Kayembe provided Ms. Stanley with a note from his doctor advising that he required a temporary medical leave. Zeiss submits the leave was related to his contracting COVID-19, and that after two weeks he was discharged from hospital and able to return to work.
[35] On November 8 and 9, Ms. Stanley emailed Mr. Kayembe setting out the process for claiming short term disability benefits, and advising that she had submitted documentation to its benefits provider with respect to his medical leave.
[36] On November 19, Mr. Kayembe met with Ms. Stanley via MS Teams. Mr. Esop deposes that Ms. Stanley advised him that during the meeting, Mr. Kayembe requested a “mutual separation package”. Mr. Esop states he disagreed that Mr. Kayembe was entitled to any compensation from Zeiss, but that he and Ms. Stanley decided to agree to his request. Following the meeting, Mr. Esop wrote to Mr. Kayembe confirming Zeiss’ agreement to the “mutual separation package” as proposed.
[37] On November 23, Mr. Kayembe emailed Mr. Esop and Ms. Stanley and advised he had provided the separation package to his lawyer for review. He also asked them a number of questions and requested they confirm they did not have any positions for him and would be putting him on “unpaid leave forever”.
[38] On November 24, Ms. Stanley wrote back expressing surprise at Mr. Kayembe’s email. She stated he had been the one to request the separation package and they had advised him they needed to get, and did get, approval for the package because it was beyond what Zeiss believed he was legally entitled to. Ms. Stanley sated Zeiss never stated he would be on unpaid leave indefinitely, and that Zeiss did not know how long the restrictions concerning vaccination would be in place. She advised that the terms of the separation package were not negotiable and that Zeiss expected a response by 4 p.m. that day.
[39] Mr. Kayembe wrote back the same day advising he disagreed with most of Ms. Stanley’s letter. He included his own timeline of events. In it, he denied that the separation package was agreed upon mutually. Mr. Kayembe advised he was waiting for another doctor’s note which he expected would put him off work until December 6, so that he could rest.
[40] On November 25, Mr. Kayembe wrote to Ms. Stanley advising his doctor’s note would be available the following day. Then on November 26, he provided a medical note stating that Mr. Kayembe was “unfit for work until December 5…due to medical reasons”.
[41] On December 4, Mr. Kayembe sent a letter to Ms. Stanley rejecting the separation package and proposing a counter-offer. Nothing in this decision turns on the content of the separation package or counter-offer.
[42] On December 6, 2021, Zeiss terminated Mr. Kayembe’s employment without cause. It provided him with a lump sum payment representing three weeks salary, and other financial entitlements.
IV DECISION
A. General Principles and Issues to Be Decided
[43] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to dismiss complaints which do not warrant the time and expense of a hearing. The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77 [Chan].
[44] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[45] In general, conflicting evidence and credibility questions do not preclude the Tribunal from granting a respondent’s dismissal application: Francescutti v. Vancouver (City), 2017 BCCA 242 and Evans v. University of British Columbia, 2008 BCSC 1026. However, when these types of conflicts and questions amount to “foundational or key issues,” they must be resolved at a hearing: Francescutti at para. 67.
[46] In this application, the onus is on Zeiss to establish the basis for dismissal.
[47] To prove his complaint at a hearing, Mr. Kayembe will have to prove that he has the protected characteristic of religion, he was adversely impacted in employment, and his religion was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61.
[48] If he could prove these three elements, then the burden at a hearing would shift to Zeiss to justify the adverse impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[49] Zeiss provides two bases for why it says this complaint should be dismissed. First, it says Mr. Kayembe has no reasonable prospect of proving he has a sincerely held religious belief that prohibited him from receiving the COVID-19 vaccine. Alternatively, it says that even if Mr. Kayembe could prove this element of his complaint, Zeiss is reasonably certain to prove any conduct that adversely impacted Mr. Kayembe was justified.
[50] I find I can resolve this application by considering Zeiss’ argument that it is reasonably certain to prove that its conduct was justified. As such, I find I do not have to consider its alternative argument about Mr. Kayembe’s prospect of proving a sincerely held religious belief.
[51] For the purposes of my analysis, I assume without deciding that at a hearing Mr. Kayembe could prove:
a. he had a sincerely held religious belief that informed his decision not to become vaccinated against COVID-19,
b. he was adversely impacted by Zeiss when Zeiss placed him on unpaid leave and eventually terminated his employment, and
c. the placement on unpaid leave and termination of his employment was connected to his sincerely held religious belief because, at least in part, it was due to his decision not to become vaccinated against COVID-19.
[52] Below, I explain why Zeiss has persuaded me that it is reasonably certain to prove its conduct was justified.
[53] At a hearing, to justify placing Mr. Kayembe on unpaid leave and terminating his employment, Zeiss would have to prove:
a. it adopted the Policy for a purpose rationally connected to the performance of the job,
b. it adopted the Policy in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and
c. the Policy was reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses Zeiss’ duty to accommodate Mr. Kayembe to the point of undue hardship, meaning Zeiss would have to show that it could not do anything else “reasonable or practical” to avoid adversely impacting Mr. Kayembe’s employment, without incurring undue hardship.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 at para. 54.
B. Rational Connection and Good Faith
[54] Zeiss says the purpose of the Policy’s vaccination requirement for customer facing employees was to allow it to continue to operate the bulk of its business in BC, which was selling medical equipment to surgeons and other doctors located in hospitals and other medical settings.
[55] I find that Zeiss is reasonably certain to prove that being able to continue its operations in BC was rationally connected to the performance of Mr. Kayembe’s job as an Account Manager. The ability of an employer to continue to operate its business is undoubtedly connected to the ability of an employee to continue to perform their job for that employer.
[56] I further find Zeiss is reasonably certain to prove the Policy’s vaccination requirement for customer facing positions was adopted in a good faith belief that it was necessary for Zeiss to be able to continue the bulk of its operations in BC. The October 14 PHO order mandated certain people working in healthcare facilities to be fully vaccinated by October 26, 2021, unless the PHO had granted them a medical exemption. Further, Providence, one of Zeiss’ primary clients and the operator of numerous healthcare facilities in Vancouver, had confirmed its requirement that all Zeiss staff would need to be vaccinated in order to attend its various premises. Given this context, Zeiss is reasonably certain to demonstrate that it held a good faith belief that the Policy’s vaccination requirement for customer facing personnel was required in order to enable it to continue operating its business.
C. Duty to Accommodate
[57] Mr. Kayembe argues he could and should have been accommodated in his position as Account Manager, or in an Application Specialist position. He says Zeiss failed to accommodate him because it refused to grant him a religious exemption from the Policy, and that he was not required to consider the Customer Care Coordinator role until Zeiss made a decision on his request for exemption from its Policy.
[58] Employees are entitled to a reasonable accommodation, not a perfect one, and where an employee rejects a reasonable proposal, or fails to facilitate one, an employer will be found to have discharged its duty to accommodate: Renaud v. Central Okanagan School District No. 23, [1992] 2 S.C.R. 970.
[59] Based on the material before me, I find Zeiss is reasonably certain to prove it discharged its duty to accommodate Mr. Kayembe to the point of undue hardship. Specifically, Zeiss is reasonably certain to prove that:
i. Zeiss engaged in meaningful accommodation efforts with Mr. Kayembe even in the absence of information it requested regarding the basis for his request for religious accommodation,
ii. there were only two accommodations that Mr. Kayembe was willing to accept, and Zeiss could not accommodate Mr. Kayembe in either position without incurring undue hardship,
iii. Zeiss offered Mr. Kayembe a reasonable accommodation that he refused, and
iv. after Mr. Kayembe refused Zeiss’ offer of reasonable accommodation, there were no further reasonable or practical steps Zeiss could take to accommodate Mr. Kayembe short of undue hardship.
1. Accommodation Efforts in the Absence of Exemption
[60] Mr. Kayembe’s submissions make it clear that he was concerned about Zeiss’ request for information to substantiate his request for a religious exemption from the Policy. He characterizes Zeiss’ repeated requests for a letter from his spiritual advisor as harassment, and says that Zeiss’ never had a basis to refuse his request for exemption even in the absence of this information. As I understand the argument, Mr. Kayembe says that Zeiss’s requests for more information rendered the accommodation process unreasonable. Put another way, on this application I understand Mr. Kayembe to argue that Zeiss’s requests undermine its argument that it is reasonably certain to prove it satisfied the duty to accommodate to the point of undue hardship.
[61] First, I observe that as a general principle, when an employee identifies a need for accommodation based on a protected characteristic, an employer might reasonably require additional information from them to understand whether it has a duty and if so, to understand the nature of the accommodation that might be required. For example, in the disability context, the Tribunal has recognized that the first step an employer can take when an employee requests accommodation for a disability is to seek medical documentation for the “purpose of ensuring that an appropriate accommodation is provided and verifying that there is a medical basis to the request”: Dunkley v. UBC and another, 2015 BCHRT 100 at para. 455, upheld in 2016 BCSC 1383. The Tribunal has also recognized that medical information supporting a request for accommodation “can serve to substantiate the person’s entitlement to the accommodation” and “may also provide more information about appropriate accommodations for the disability”: de Champlain v. BC Ministry of Health, 2018 BCHRT 252 at para. 57; Raudales v. Interior Health Authority (No. 3), 2019 BCHRT 73 at para. 64.
[62] Second, I am mindful that whether an employer has fulfilled its duty to accommodate must be approached on a global basis: Hydro-Québec v. Syndicat des employé-e-s de techniques professionelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 20. What this means is that the Tribunal does not assess each incident or action in isolation from the bigger picture, but instead considers the entire history of the matter: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 413, citing Hydro-Québec.
[63] Further, and more importantly, even in the absence of a letter from his spiritual advisor, Zeiss offered Mr. Kayembe the Customer Care Coordinator position which could be performed entirely remotely and did not require vaccination. Zeiss also continued dialogue with him back and forth about the extent to which he could be accommodated in either his own role as Account Manager, or in the Application Specialist role he was seeking. As I explain below, I am satisfied that Zeiss is reasonably certain to prove that even in the absence of the information it had been requesting, it offered Mr. Kayembe a reasonable accommodation which he did not accept, and that he was, in effect, seeking a perfect accommodation. Considering the matter globally, I am not satisfied that Zeiss’s requests for information undermine its argument that it is reasonably certain to prove it discharged its duty to accommodate Mr. Kayembe.
2. Accommodation in Account Manager or Application Specialist Positions
[64] On the evidence before me, I find Zeiss is reasonably certain to prove that Mr. Kayembe could not be accommodated in either his position as Account Manager, or in an Application Specialist position, because it is reasonably certain to prove that: 1) both positions required vaccination in order to attend client premises in person, and 2) neither position could be performed remotely.
Positions Required Vaccination
[65] I understand Mr. Kayembe to dispute Zeiss’s assertion that both positions required vaccination. In his submissions on this application, Mr. Kayembe asserts that the only reason he was not permitted to enter customer sites was because Zeiss “denied my religious exemption request”. He expressly rejects Zeiss’ submission that his attendance in-person at client sites was limited by both the October 14 PHO order, and Providence and other clients’ vaccination requirements. In support of his position, Mr. Kayembe points to two portions of the October 14 PHO order that allowed for limited vaccination exemptions for certain staff or outside health care providers who had received a medical exemption (or were awaiting a decision on an exemption request submitted to the PHO at the time).
[66] What Mr. Kayembe does not address, is that the reference to “exemptions” in the PHO order were not references to the kind of exemption Zeiss could have granted in relation to its Policy. The only “exemptions” contemplated by the October 14 PHO order were medical exemptions granted by the PHO under the Public Health Act. Specifically, in paragraph T of the preamble of the October 14 order, the PHO sets out that upon considering her obligations under the Code, she had “decided not to consider a request for an exemption by way of variance under section 43 of the Public Health Act, other than on the basis of a medical deferral to vaccination. This is supported by the definition of “exemption” set out in the order as being “a variance issued to a person under the Public Health Act on the basis of a medical deferral to vaccination, which permits a person to work, despite not being vaccinated”.
[67] Leaving aside the requirements of the PHO order, Mr. Kayembe does not explain how Zeiss granting him an exemption from its Policy would allow him to override Providence’s – and other clients’ – requirement that Zeiss staff only attend its sites if they were vaccinated.
[68] The documentary record and Mr. Kayembe’s submissions on this application demonstrate that despite multiple explanations by Zeiss, Mr. Kayembe appears to have misapprehended the extent to which any religious exemption granted by Zeiss would impact his ability to work in-person in client facilities. It appears on the evidence before me that the reality of the situation was that the “exemption” that he was pursuing, was in relation to Zeiss’ Policy, not Providence’s or other clients’ vaccination requirements or the October 14 PHO order. The exemption Mr. Kayembe was seeking from Zeiss would simply have required Zeiss to consider options for him to continue his employment without becoming vaccinated; which the undisputed evidence demonstrates Zeiss was already doing, for example, by offering him the Customer Care Coordinator position.
[69] On the evidence before me, I am persuaded that Zeiss is reasonably certain to prove that both positions Mr. Kayembe was seeking required vaccination for in-person attendance at client sites.
Performance of Roles Remotely
[70] I am satisfied that Zeiss is also reasonably certain to prove that neither the Account Manager nor the Application Specialist roles could reasonably be performed remotely. To the extent that Mr. Kayembe asserts that he could have performed these roles remotely, and that this would have been a reasonable accommodation, I find his assertion lacks an evidentiary foundation on the materials before me.
[71] In its submissions, Zeiss provided a list of all of Mr. Kayembe’s customers and explained they are all located in hospitals or other medical settings subject to the October 14 PHO order. Although in his submissions Mr. Kayembe states that some of Zeiss’ clients were private medical clinics, and implies they may not have required Zeiss staff to be vaccinated in order to attend in-person, he does not identify any clients he says are in private clinics, nor does he explain what those clients’ vaccination policies would have been at the time. Further, Mr. Kayembe’s sur-reply submission attaches several excerpts of spreadsheets showing what appear to be his clients, and, as with Zeiss’ spreadsheets, the majority of clients appear to be hospitals and/or health authorities.
[72] Mr. Esop deposes that at most, Mr. Kayembe would have been able to perform 20-30% of his role remotely. According to Mr. Esop, an essential part – approximately 70-80% – of the Account Manager position, was to make personalized sales demonstrations and to train and educate surgeons on the operation, utilization, and application of Zeiss’ products. He explained that this required the Account Manager to be present in operating rooms with surgeons and patients.
[73] In his sur-reply, Mr. Kayembe asserts that “there was no urgency to be in the operating room” and that “most of the interactions with the operating room could have been directly attended by the biomedical engineer team”. This assertion is similar to Mr. Kayembe’s statement in his October 30 letter to Ms. Stanley, in which he said that he could “do more than 70% of my work from home on a regular month and have any special request being handled by someone else”. Mr. Kayembe does not explain the basis of his assertions about what amount of work he could perform at home, nor does he address Zeiss’ substantial evidence about why his former role could not have been performed remotely.
[74] Specifically, Mr. Kayembe does not address Mr. Esop’s evidence that:
· Mr. Esop had held the same role as Mr. Kayembe – Account Manager – for six years, and during that time he spent nearly all his time in operating rooms with surgeons doing demonstrations and providing training on equipment in real time,
· the only time Account Managers were not required to attend customer sites in person was during the earliest parts of the COVID-19 pandemic when Zeiss staff was not permitted inside health care facilities, which was not a functional way for the business to operate, and that once restrictions eased sufficiently, Zeiss’ clients required Account Managers to resume making in-person visits,
· the only part of the job that can be done remotely is the administrative component, which, at most, accounts for 20-30% of the job, and
· having another person perform the in-person work while Mr. Kayembe performed the administrative work remotely was not possible, as the other person would effectively be doing the work of two people, and would be too much travel for one person to manage.
[75] These were all explanations that were provided to Mr. Kayembe at the time, and he did not then, nor does he now, respond to them.
[76] Further, Mr. Kayembe’s assertions about his ability to perform the Account Manager role remotely, are inconsistent with evidence from his job description which sets out that his position required “50% or more of time is spent travelling”, and among his “Primary duties and Responsibilities” was to:
i. Make scheduled personalized sales demonstrations to Customers in the Fields of Business of Visualization, Surgical Ophthalmology and Surgical Oncology market in region of responsibility. Customers include but are not limited to Surgeons (Ophthalmology, Neuro, ENT, P+R, Spine, Gyn, Dental, General) and Oncologists as well as all training on applications and In servicing relevant hospital and clinic staff.
ii. Educate and follow up the Surgeons and staff members on the operation, utilization and applications of our product to insure overall customer satisfaction.
iii. Establish/ maintain good relationships with customers and accounts.
[77] In fact, in his own evidence, Mr. Kayembe provides a Zeiss posting for an Account Manager – Surgical Ophthalmology – in the Montreal territory, which indicates that among the “Primary Duties and Responsibilities” of the position is the “ability to travel as much as 70% of the time”.
[78] Although I recognize Mr. Kayembe is self-represented, as set out above, the Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at a hearing: Chan at para. 77. Based on the evidence before me, I am persuaded that Zeiss is reasonably certain to prove Mr. Kayembe’s position as Account Manager was primarily an in-person role, and could not reasonably be performed remotely.
[79] With respect to the Application Specialist role, Mr. Esop deposes that like the Account Manager position, it was not suitable for an unvaccinated person because of the requirement for Application Specialists to spend almost 100% of their time in person in hospitals and in operating rooms working with doctors. He says the role was impossible to perform remotely. Further, Mr. Esop deposes, and advised Mr. Kayembe at the time, that there were no available Application Specialist roles when Mr. Kayembe was seeking accommodation.
[80] Given Mr. Kayembe did not respond to Zeiss’ evidence about the Application Specialist role being almost 100% in-person and there being no available positions at the relevant time, I am persuaded that Zeiss is also reasonably certain to prove that, for essentially the same reasons set out above, Mr. Kayembe could not perform that role remotely.
3. Refusal of Reasonable Accommodation
[81] Following from the above context, I find Zeiss is reasonably certain to prove the only two accommodations Mr. Kayembe was willing to consider were positions in which he could not be accommodated, and that by repeatedly refusing to consider the Customer Care Coordinator position, he effectively refused a reasonable accommodation.
Seeking Perfect Accommodation
[82] The evidence before me shows that the only two accommodations Mr. Kayembe proposed, repeatedly, were his own role and the Application Specialist role. Mr. Kayembe never suggested, at the time or now, that there were any other positions that he was interested in or believed he could be accommodated into. At the same time, he never indicated the Customer Care Coordinator role was not appropriate for him. In fact, at the time he told Ms. Stanley that he felt the Customer Care Coordinator role was a “great position”. Nevertheless, the evidence before me indicates that Mr. Kayembe refused to consider the role on the basis that he wanted to be accommodated into one of the other roles. Given this evidence, I find Zeiss is reasonably certain to prove that Mr. Kayembe was seeking a perfect accommodation into one of two roles, which, as I have set out above, Zeiss is reasonably certain to prove it could not reasonably or practically have accommodated him in.
Refusal of Customer Care Coordinator Role
[83] Mr. Kayembe submits that he never refused the Customer Care Coordinator role, but I find Zeiss is reasonably certain to prove that he did.
[84] As early as October 28, even though Mr. Kayembe had not provided the information that Zeiss had requested, Zeiss offered Mr. Kayembe the Customer Care Coordinator position and advised him he could perform it remotely and would not need to become vaccinated. Despite this offer, and the repetition of this offer and explanation about why it was being offered, the evidence before me indicates that Mr. Kayembe refused to consider the offer, taking the position that it was not necessary for him to do so until Zeiss decided his exemption request. The evidence before me is that even after Zeiss explained why an exemption from Zeiss’ policy would not allow him to be able to work in his role or the Application Specialist role without becoming vaccinated, Mr. Kayembe still refused to consider the Customer Care Coordinator role.
[85] When Zeiss set out its position on November 2 that Mr. Kayembe had refused the opportunity to meet with the hiring manager regarding the Customer Care Coordinator role, and that he was being given a “final opportunity”, to participate in the accommodation process, Mr. Kayembe’s response was that he was “a bit surprised that I am being aggressively pointed with the finger for refusing the role even though my statement was clearly different”. This aligns with his submission on this application that he never actually refused the position. However, on the evidence before me, I find Zeiss is reasonably certain to prove that by maintaining the position that he did not need to consider the Customer Care Coordinator position until Zeiss formally granted him an exemption from the Policy, Mr. Kayembe effectively, if not expressly, rejected the offer of the position.
Reasonableness of Customer Care Coordinator Role
[86] With respect to the reasonableness of the accommodation offered, I do not understand Mr. Kayembe to dispute Zeiss’ submissions that:
· Mr. Kayembe was qualified for the Customer Care Coordinator position,
· the position would have allowed him to continue employment with Zeiss without having to become vaccinated, and
· Mr. Esop had looked for other possible options and no other positions that Mr. Kayembe was qualified for and did not require in-person visits to medical sites subject to vaccination requirements were available at the time.
[87] Further, on the evidence and submissions before me, there is no indication that Mr. Kayembe ever raised any concerns about the position itself or why it would not have been suitable for him. Given this context, and my findings above that Zeiss is reasonably certain to prove Mr. Kayembe could not be accommodated into either of the only two positions he was prepared to accept, I am persuaded that Zeiss is reasonably certain to prove that the Customer Care Coordinator position was a reasonable accommodation that would have allowed Mr. Kayembe to continue working despite his refusal to become vaccinated.
4. Further Reasonable or Practical Steps
[88] Zeiss terminated Mr. Kayembe’s employment on December 6, 2021. On this application, Zeiss argues that it is reasonably certain to prove that at that point it had met its duty to accommodate Mr. Kayembe to the point of undue hardship. In support, it points to Mr. Esop’s evidence about why there were no further reasonable or practical steps Zeiss could have taken to accommodate Mr. Kayembe at the time. Mr. Kayembe, for his part, did not respond to Zeiss’ evidence and argument about any further steps it could have taken to accommodate him. I explain below why I am satisfied that Zeiss is reasonably certain to prove that after Mr. Kayembe refused Zeiss’ offer of the Customer Care Coordinator position, there were no further reasonable or practical steps it could have taken to accommodate Mr. Kayembe without incurring undue hardship.
[89] Mr. Esop deposes that given the nature of the COVID-19 pandemic, the October 14 PHO order, and Providence’s vaccination policy, it was not possible for Zeiss to predict how long the vaccination requirements would last, and there was no foreseeable date in the future by which Mr. Kayembe would be able to come back to his job. He further deposes that it would not have been possible to place Mr. Kayembe on an indefinite unpaid leave of absence as his position could not be left vacant. He states that Zeiss’ clients used Zeiss equipment every day to operate on patients, and that Zeiss needed the person in Mr. Kayembe’s position to be able to respond and assist with any issues relating to the medical equipment sold to its clients. He further states that it can take up to two years to hire and train someone to learn the equipment well enough to take over a sales territory, and that when Mr. Kayembe left, Mr. Esop was the one who filled in for him while Zeiss was training a new person and that was not sustainable long term.
[90] Mr. Kayembe did not respond to Mr. Esop’s evidence and argument. In fact, Mr. Kayembe’s submissions regarding the termination of his employment were limited. It appears that Mr. Kayembe takes issue with the amounts Zeiss did (or did not) pay him after the termination. For instance, in one part of his submissions he links the termination of his employment (which he refers to as being laid off) to Zeiss’ “refusal to provide me a fair deal from the total amount of $420,315.00 owed in commission”. He further claims that Zeiss was “warned multiple times during our negotiation process that it was to their best interest to offer me a reasonable deal”.
[91] To the extent that Mr. Kayembe is arguing that his termination was due to Zeiss’ unwillingness to pay him commissions he was owed, that is not a human rights issue. While Mr. Kayembe may disagree with the amounts Zeiss did or did not pay him after he was terminated, he has not connected that issue to his protected characteristic.
[92] At another point in his submission, Mr. Kayembe links his termination to Zeiss’ failure to contact his spiritual advisor directly. I understand this submission to be that the termination was unreasonable because he could have been accommodated in the Accounts Manager position if Ms. Stanley had called his spiritual advisor. This, however, repeats arguments that I have already addressed and rejected. As I explained above, I am satisfied that Zeiss is reasonably certain to prove that it could not accommodate Mr. Kayembe in that position.
[93] Mr. Esop’s evidence about why Zeiss could not reasonably or practically keep Mr. Kayembe on indefinite unpaid leave without incurring substantial hardship stands uncontested. Further, Mr. Kayembe does not argue that Zeiss could or should have accommodated him by keeping him on unpaid leave indefinitely, nor does he set out any other reasonable or practical steps he says Zeiss could have taken in order to accommodate him. As such, on the evidence before me on this application, I am satisfied that Zeiss is reasonably certain to prove that after Mr. Kayembe refused to consider the Customer Care Coordinator role, there were no further reasonable or practical steps it could have taken to accommodate Mr. Kayembe without incurring undue hardship.
5. Conclusion on Duty to Accommodate
[94] Ultimately, I find that if this matter were to proceed to a hearing, Zeiss is reasonably certain to prove that Mr. Kayembe could not be accommodated in the Account Manager role or the Application Specialist role, and that he refused a reasonable alternative position that would have allowed him to continue to work without getting vaccinated. Further, Zeiss is reasonably certain to prove that after he refused its reasonable offer of accommodation, there were no further reasonable or practical steps it could have taken to accommodate Mr. Kayembe without incurring undue hardship. As such, Zeiss is reasonably certain to prove it discharged its duty to accommodate Mr. Kayembe to the point of undue hardship.
V CONCLUSION
[95] For the above reasons, I find Mr. Kayembe’s complaint has no reasonable prospect of success, and I dismiss it under s. 27(1)(c) of the Code.
Shannon Beckett
Tribunal Member
Human Rights Tribunal
[1] ORDER OF THE PROVINCIAL HEALTH OFFICER (Pursuant to Sections 30, 31, 32, 39 (3), 54, 56, 57, 67 (2) and 69 Public Health Act, S.B.C. 2008) HOSPITAL AND COMMUNITY (HEALTH CARE AND OTHER SERVICES) COVID-19 VACCINATION STATUS INFORMATION AND PREVENTIVE MEASURES – OCTOBER 14, 2021
[2] See for example, Mr. Kayembe’s November 24, 2021, timeline of events that he sent to Ms. Stanley, which acknowledges that on October 21 he advised Ms. Stanley he was Mennonite.