Unsuccessful discrimination claim for worker with poor performance

Worker claimed religious debate with manager was factor in his dismissal, but had a lengthy list of performance and behaviour issues

A religious disagreement between a British Columbia worker and his manager wasn’t enough to support an argument of discrimination when the worker was fired for ongoing performance and behaviour issues, the B.C. Human Rights Tribunal has ruled.

Shreyansh Shah was hired in February 2015 to work in the engineering department for the Hyatt Regency Hotel in Vancouver. His duties included replacing light bulbs and air-conditioning filters, maintaining plumbing fixtures and supplies, performing maintenance on room appliances and doors, taking water readings in the swimming pool and hot tub, and performing general maintenance duties.

The hotel’s director of engineering, Joe Weiss, found Shah to be a problem employee. He had issues with Shah’s job performance and found Shah to be confrontational when problems were brought to his attention. Only two months into Shah’s employment with the hotel in April 2015, Weiss completed a 30-day performance assessment for Shah that noted several areas needing improvement. Shah was told he needed to “make a drastic improvement in his overall job performance” by the time his 60-day assessment was done.

On April 30, Shah’s 60-day assessment showed some improvement but he was still evaluated as “developing.” Weiss indicated Shah needed to show a larger improvement “to make up for lost time” before his probationary period elapsed on May 21.

Performance improved but still needed work

Shah completed his probationary period and continued in his role in the engineering department. Weiss made another assessment on Sept. 5, which found Shah had improved enough to upgrade his status from “developing” to “performing.” Weiss noted that Shah needed to continue working hard on his ability to interact with co-workers and learning new skills.

However, there were still issues with Shah confronting co-workers over behaviour he felt was inappropriate and putting himself into situations where he didn’t need to be involved. Weiss spoke with Shah informally, telling him he should get a manager or supervisor if he thought co-workers weren’t following policy, rather than confronting them.

On Dec. 8, Weiss met with Shah and told him he hadn’t gained the level of knowledge that was expected after eight months of service. Shah said he was caught off-guard because they had never talked about his performance, which surprised Weiss given their previous discussions and assessments. Shah thought he was being terminated, but Weiss said this wasn’t the case and couldn’t understand why Shah thought so.

Shah also had some disagreements with Weiss over religious beliefs. On Jan. 25, 2016, Shah told Weiss he had sent an email to convince him that evolution existed, but Weiss said he already believed in it. He also told Shah that it wasn’t appropriate to discuss theology in the workplace, but Shah continued to question Weiss’ beliefs.

The next day, Weiss and the assistant engineering manager told Shah his performance was improving, but Shah got upset and said he needed more important work to do and to learn more. Shah also didn’t like the scheduling and expressed his belief that he should have weekends off because of his seniority —though the schedule gave everyone at least one weekend off.

Two weeks later, Weiss scheduled a meeting to discuss Shah’s performance and behaviour in the workplace. However, Shah was defiant and refused to listen, so the meeting was cut short after Weiss referred to “constant mistakes, attitude problem, defiance with scheduling.” Shah later told the assistant manager that he felt Weiss acted like a bully when he interacted with him and the rest of the crew.

A short time later in March, Shah received a written warning for insubordination after he refused to follow directions for making vacation requests. Shah then emailed the hotel’s general manager with several complaints, including an allegation that Weiss tried to convert him to Christianity after encouraging him to take a course at Weiss’ church and telling Shah he wasn’t living his life “as God intended.”

Weiss denied Shah’s allegations and the hotel investigated. The hotel concluded that Weiss had engaged in inappropriate conduct and conducted discrimination and harassment training. Weiss also provided a letter to Shah apologizing for the comments he made about religion.

In the fall of 2016, the hotel received several complaints from employees about Shah’s behaviour, including not performing his duties, being argumentative, and opening the swimming pool an hour early for a guest to use — which created issues with noise and safety. Weiss also discovered that Shah had been late for his shift 21 times and took his lunch break late 56 times between May 1 and Oct. 6.

Performance improvement plan

After several more complaints, the hotel put Shah on a performance improvement plan that set out expectations for Shah over the next 60 days and regular progress meetings. Shah was told that if he didn’t improve during that time period, he could face disciplinary action including possible termination.

Weiss met twice with Shah to discuss his progress, but Shah was combative. He also received complaints that Shah was still having problems with his work on the swimming pool and other tasks.

On Jan. 5, 2017, a midpoint review of the performance improvement plan found Shah had improved on six of 11 performance expectations but was having problems with the others. By the end of the plan on Jan. 25, the hotel found Shah continued to have performance issues, so management decided to terminate his employment.

However, Shah went to the hospital with an injury on Jan. 30 and said he would be absent until Feb. 7, so management postponed Shah’s termination until he returned to work as the normal process was to hold in-person termination meetings. He returned to work on light duties on Feb. 9.

Management scheduled a termination meeting for Feb. 14, but Shah went off work again until Feb. 25. His return was delayed until March 9 due to additional problems, and a meeting was scheduled for March 14. However, the day before the meeting Shah emailed the director of human resources to say he was going on medical leave.

Management decided it couldn’t wait any longer, so the hotel sent Shah a termination letter on March 15. Shah then filed a human rights complaint against the hotel and Weiss alleging discrimination regarding employment on the basis of physical disability and religion. The hotel said there was no discrimination and applied to dismiss the complaint.

The tribunal found that the only physical disability indicated by Shah was the injury he suffered on Jan. 30, 2017 — at which point the decision had already been made to terminate his employment, so it couldn’t have been a factor in Shah’s termination.

“The overwhelming preponderance of evidence is that the general manager and director of human resources made their decision prior to being informed of Mr. Shah’s injury and need for time off, and that the decision was based on performance related concerns,” the tribunal said.

The tribunal also found that the several warnings and instructions Shah received from Weiss were adverse impacts in his employment, but it was unlikely Shah had a reasonable prospect in proving religion was a factor. While an investigation by the hotel found Weiss had made inappropriate comments related to religion, the documentation and complaints from other employees over most of Shah’s time at the Hyatt backed up the hotel’s claimed reason for termination. Shah’s complaint about Weiss’ comments was investigated and resolved by the hotel — including an apology from Weiss —and there was “nothing to show or support a reasonable inference that Mr. Shah’s religion was a factor when he was dismissed some nine months later,” said the tribunal.

The tribunal noted that Shah was given plenty of opportunity to improve through numerous assessments and the performance improvement plan, but Shah continued to have performance-related issues. Though Shah complained Weiss picked on him because of his religious beliefs, there was no real evidence that this was the case, making it unlikely Shah could establish his termination was for discriminatory reasons. The tribunal dismissed Shah’s complaint.

For more information see:

Shah v. Hyatt Regency Vancouver and another, 2019 BCHRT 46 (B.C. Human Rights Trib.).

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