Decision to terminate B.C.worker based on performance during probation; manager who hired worker 1 month earlier made decision
A British Columbia worker’s claim of racial discrimination after being terminated while on probation has been dismissed by the B.C. Human Rights Tribunal.
The worker began working for Terrapure Environmental, a waste management services company based in Burlington, Ont. on June 25, 2018. His role was that of a truck driver operating out of a B.C. location carrying waste from clients to be disposed of. He was subject to a three-month probationary period from the date of hire so the company could “assess his performance to determine whether or not Terrapure wanted to continue his employment.”
According to the worker, one month after he started work at Terrapure, on July 24, the senior operator to whom he reported approached him in the lunchroom while he was eating lunch. The senior operator looked at the worker’s lunch and said, “So stinky, are you eating Chinese food?” This upset the worker, whose ethnic background is Chinese.
The senior operator acknowledged that he asked the worker if he was having Chinese food for lunch, but he denied that he used the word “stinky” and claimed he told the worker that it smelled good. He said he was eating Indian food that day and was trying to be friendly by discussing their lunches and he didn’t see any indication that the worker was upset over their conversation.
The next morning, the senior operator told the worker to clean up a wastewater flood. The worker asked for rain boots to wear on the job, but the senior operator refused his request. The worker complained to Terrapure upper management, who investigated and determined that the denial of rain boots for the wastewater cleanup was improper. The senior operator was suspended for one day without pay.
The same day — July 25 — the branch manager who had hired the worker called a meeting with the worker. The worker claimed that, at the meeting, the branch manager told the worker that Terrapure had lost a contract and didn’t have any more work for him. As a result, the company no longer needed his services.
The worker filed a human rights complaint alleging he was harassed at work by the senior operator because of his Chinese ancestry — adding that the senior operator was friendly with white truck drivers but rude to him — and that Terrapure discriminated against him because his race was a factor in his termination.
Terrapure disputed the worker’s claim, pointing to the senior operator’s account of the lunchroom interaction as evidence there was no harassment in the workplace. It also denied the worker’s race played any role in his termination — it agreed that the worker was told his services were no longer needed, but this was because the worker was still on his probationary period and the company had determined he was not the right fit. The company’s normal practice was to not give employees a reason for termination when the termination was without cause and it said that the worker “did not meet Terrapure’s performance and safety expectations and his employment was accordingly terminated.”
The company argued there was no evidence linking the worker’s race with its decision to terminate his employment and applied to the tribunal to have the complaint dismissed. In addition, it denied that the branch manager mentioned the loss of a contract as a reason for dismissal, as such information was confidential and the branch manager would not have shared it with a dismissed employee, the company argued.
The tribunal noted that for it to dismiss the worker’s complaint, Terrapure had to show that the worker had no reasonable prospect of proving that he was treated adversely because of his race. In addition, the worker didn’t have to prove that his race was the main reason for his termination and treatment at work but only a factor.
The tribunal also commented that “discrimination on the basis of race is usually subtle and will often have to be proven by inference” as direct evidence of racial discrimination was often hard to obtain. However, while there was often evidence of “the possibility of discrimination” when someone who is part of a minority group was involved, there must be more than a “mere possibility” to warrant a human rights hearing.
The tribunal found that while the worker complained his termination was discriminatory because of his race, he provided no evidence related to his termination. His only evidence related to his race concerned his interactions with the senior operator — who had no role in the decision to terminate the worker’s employment. It was the branch manager who hired the worker and made the decision to dismiss the worker.
Regarding the decision to terminate the worker’s employment, the tribunal found that Terrapure was consistent in its reason. The worker was on his probationary period, during which his ability to do his job was being evaluated. The branch manager told the worker his services were no longer needed, which it was entitled to do for a probationary period. Because it was a without-cause termination, there was no obligation to provide another reason, said the tribunal.
The tribunal also noted that the branch manager knew the worker was of Chinese background when he hired him, so it didn’t really make sense that he would dismiss him one month later because he was Chinese. In addition, the worker didn’t provide an explanation why this would be the case.
As for the worker’s interactions with the senior operator, his claim that the senior operator was friendly to other truck drivers and rude to him was a broad allegation and the worker provided no details. The tribunal dismissed this claim as “speculative.”
Regarding the lunchroom interaction, the tribunal found that if the senior operator made the “stinky” comment, it alone didn’t amount to discrimination under the B.C. Human Rights Code. It wasn’t “egregious or virulent” nor did it “communicate a message that [the worker] is less worthy of respect or dignity because of his Chinese ancestry” by itself. At most, the incident indicated the senior operator didn’t like the smell of the worker’s lunch. It was not enough to show harassment based on race, said the tribunal.
“Given its relatively benign nature, that it happened on only one occasion, that it was not accompanied by any other adverse consequences for [the worker], and that [the worker] did not complain about it at the time, I cannot conclude that it is a comment capable of amounting to discrimination contrary to... the code,” the tribunal said in dismissing the complaint.
For more information, see:
- Terrapure Environmental and another, 2019 BCHRT 51 (B.C. Human Rights Trib.).
