Yuxian Zhang v. Aero Tech Precision Machining Ltd. and Harry Mistry, 2012 HRTO 799

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yuxian Zhang Applicant

-and-

Aero Tech Precision Machining Ltd. and Harry Mistry Respondents

DECISION

Adjudicator: Douglas Sanderson Date: April 19, 2012 Citation: 2012 HRTO 799 Indexed as: Zhang v. Aero Tech Precision Machining

APPEARANCES

Yuxian Zhang, Applicant ) Self-represented Aero Tech Precision Manufacturing ) Self-represented and Harry Mistry, Respondents )

1This is an Application filed on July 21, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment because of race, colour and place of origin.

Decision

2For the reasons which follow I dismiss the Application.

3The applicant is a Chinese man who emigrated from China and attained permanent resident status in Canada. The hearing of the Application occurred on September 27, 2011 and December 19, 2011. I heard evidence from the applicant (through an interpreter), the personal respondent and Angela Xian. I received 15 exhibits into evidence. I have set out below a summary of the material evidence and I have addressed any disputes in the evidence, along with the reasons for my findings In assessing credibility, I have applied the test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]

The Evidence

Wage Reduction

4The applicant testified that he was referred to the respondents by Angela Xian, who worked at the Tazumi Education Centre. The individual respondent, Harry Mistry, interviewed him and hired him on the strength of his qualifications and his ability to answer technical questions. The applicant described his technical training and experience in China and tendered several documents that established his credentials, including his resume. The resume indicated that the applicant had over three years of CNC programming and set up. The applicant advised Mr. Mistry that he had not worked with the machines used by the respondents. Nonetheless, Mr. Mistry agreed to pay the applicant $18 per hour and he accepted the offer. After his first week with the respondents, Ms. Xian contacted him and informed him that Mr. Mistry was now willing to pay him only $14 per hour. The applicant felt that this wage was too low, but he felt he had no choice but to accept the change, having resigned from his previous employment. The applicant stated that he believed the wage reduction was related to his place of origin. The applicant tendered print outs of labour market research he conducted regarding machining trades and job advertisements for CNC Lathe operators that he contended demonstrated that he was significantly underpaid.

5Mr. Mistry owns and operates the organizational respondent, Aero Tech Precision Machining Ltd. (“Aero”), which manufactures machined parts. Mr. Mistry’s evidence was that he needed a CNC Lathe (a computerized machining tool) operator and Ms. Xian referred the applicant to him. Mr. Mistry decided to hire the applicant based on his experience and qualifications, but recalled that the starting wage was $17 per hour. After the applicant’s first week, Mr. Mistry realized that the applicant was not familiar with the CNC Lathe and was very slow in programming it. Ms. Xian called him to follow up regarding the applicant and he informed her of his slow work. He informed that he could not pay him $17 per hour given his slow work, but could pay him $14 per hour and increase his pay as he improved. Ms. Xian spoke to the applicant and later informed Mr. Mistry that the applicant agreed to this arrangement. The applicant continued to take a long time for programming and set-up, but Mr. Mistry slowly increased his pay as the applicant progressed.

Verbal Abuse

6The applicant testified that he worked very diligently for the respondent and often did extra work without being asked and without receiving overtime pay. Nonetheless, Mr. Mistry was unduly critical of his work, particularly the speed at which he worked and often told him “time is money”. The applicant was exposed to unsafe working conditions because of the type of work performed at Aero and the machinery employed there. The applicant stated that he did not feel that Mr. Mistry valued the lives of Chinese people. The applicant also stated that Mr. Mistry subjected him to verbal abuse and would often use the “F-word” when mistakes were made. On one occasion when the applicant had difficulty explaining a mistake he made, Mr. Mistry said “Fuck-you Chinese”. The applicant was not sure if he meant the Chinese language or himself.

7Mr. Mistry’s evidence was that he found that whenever he gave the applicant instructions the applicant would resist and state that his previous employer would do things differently. Mr. Mistry found this frustrating and on one occasion became angry and said the “F-word” to him. Mr. Mistry acknowledged that he sometimes uses curse words, but denied that he ever used them in a racial manner. He denied ever saying “Fuck-you Chinese” to the applicant. Mr. Mistry noted that he had another Asian employee working for him and would have no reason to say inappropriate things about them.

Lunch

8The applicant testified that shortly after he started working for the respondents he noticed the door to the microwave was left open on two occasions. The applicant concluded that Mr. Mistry did not like the smell of his food. From then on, he was careful not to bring food to work that has a strong smell when heated.

9At about the same time, the applicant noticed Mr. Mistry stopped eating his lunch with the employees, preferring to take his lunch in his office. The applicant attributed this change to cultural differences. In cross examination, the applicant acknowledged that he took his lunch at a different time than other employees, but used the same table. Mr. Mistry put to him that he had never eaten lunch with the applicant and the applicant stated that he had observed Mr. Mistry eating with the other employees for the first few weeks he worked for the respondents.

Status Questioned

10The applicant stated that sometime in February 2008 he went to Mr. Mistry’s office to get his advice about a drawing. While there, Mr. Mistry asked him if he was a Canadian citizen. The applicant responded that he was not a citizen, but had landed immigrant status. The applicant showed Mr. Mistry his drivers’ license and OHIP card.

11Mr. Mistry testified that he did not ask the applicant about his citizenship or whether he was “legal” or “illegal”. He explained that he had no reason to make such inquiries because the Tazumi Education Centre confirmed his status when they referred the applicant to him.

Termination of Employment

12The applicant stated that in June and July 2008, there were fewer orders and Mr. Mistry informed him in late July or early August that they would have days off because of the lack of work. On Friday, July 25, 2008, the applicant was with Mr. Mistry in his office. Mr. Mistry noted that there was not a lot of work and asked the applicant to quit. The applicant did not argue with Mr. Mistry because of all the stress he had experienced working for the respondents. The applicant went home and applied for Employment Insurance.

13Mr. Mistry’s evidence was that the applicant quit voluntarily. Mr. Mistry stated that on Monday, July 23, 2008 the applicant informed him “I finish on Friday”. Mr. Mistry was surprised and the applicant confirmed “I finish on Friday”. Mr. Mistry assumed that he had found another job and did not ask for an explanation. Mr. Mistry noted, however, that he had raised the applicant’s wage to $16.50 per hour one or two weeks previously and the applicant was not happy because he expected a larger increase. Mr. Mistry noticed a falloff in the applicant’s work ethic from that point. Mr. Mistry stated that he did not ask the applicant to quit and had not intended to dismiss him.

14Mr. Mistry also testified that he shuts down the operation each summer for vacation in late July or early August. He had explained this practice to the applicant, which the applicant apparently misunderstood because he thought the shutdown was due to lack of work. In cross examination, Mr. Mistry agreed that he did not replace the applicant, but stated that he chose to perform the work himself.

Angela Xian

15Ms. Xian was an employee of the Tazumi Education Centre and referred the applicant to the respondents. Ms. Xian was able to recall very little of her interactions with the parties, but was able to confirm that Tazumi only dealt with applicants legally entitled to work in Canada. She usually followed up with employers to determine whether candidates are succeeding.

Employment Insurance Proceedings

16Shortly after leaving the respondents’ employ, the applicant applied for Employment Insurance benefits. He stated that he wrote down what happened, but did not include all the details. His son helped him complete the forms in English, but refused to write “fuck” in the application because it was too vulgar. The applicant tendered into evidence the Employment Insurance Appeal Docket which contained the documents regarding his claim. The applicant indicated that he was unemployed because he quit. He completed the “Quit” questionnaire in which he explained his reasons for quitting were as follows:

• Mr. Mistry hired him at a wage of $18 per hour, although he had never worked with the machines Aero used;
• Mr. Mistry cut his wage to $14 per hour after the first week with the respondents because of his lack of proficiency, but would pay him $18 per hour when he was more skilled;
• Mr. Mistry raised his pay to $15 per hour a month later and to $16 per hour after January 2008;
• After nine months, the applicant mastered the job, but Mr. Mistry only raised his wage to $16.50 per hour. When Mr. Mistry refused to keep his promise to increase the applicant’s wage to $18 per hour, he quit; and,
• The applicant noted that Mr. Mistry put him under a lot of pressure, scolding him and using coarse language.

The Employment Insurance Commission denied the applicant’s claim for benefits because the applicant voluntarily left his employment without just cause within the meaning of the Employment Insurance Act, SC 1996, c 23.

17The applicant appealed the decision to the Board of Referees for Employment Insurance. The applicant’s narrative regarding the appeal reiterated that he resigned his employment with the respondents because Mr. Mistry refused to raise his pay to $18 per hour as promised and that Mr. Mistry was critical of him and used harsh language. The Commission also contacted Mr. Mistry and the documents indicated that Mr. Mistry considered the applicant to have lied regarding his qualifications that were the basis for his decision to hire him. The Commission conducted labour market research and concluded that the applicant’s hourly wage was in accordance with the labour market data collected. In the Notice of Appeal, the applicant alleged that Mr. Mistry said he would re-employ the applicant, but when the applicant asked to return to work Mr. Mistry told him to wait for a call, which never came. The Board of Referees’ Decision, dated October 16, 2008, indicates that the applicant testified at the hearing to the effect that Mr. Mistry gave him an ultimatum to quit or be fired. The Board of Referees, however, accepted Mr. Mistry’s evidence that he did not dismiss the applicant. The Board confirmed the Commission’s decision that the applicant quit his employment and did not establish that there was no reasonable alternative to quitting.

Applicant’s Submissions

18The applicant submitted that Mr. Mistry’s discrimination against him was demonstrated in the following actions:

• Reducing his wage after working for one week;
• Claiming he was inexperienced, despite his training and experience in China;
• Using abusive language denigrating Chinese people; and,
• Making false statements against him in the Employment Insurance proceedings, i.e., that he lied about his qualifications and that he did not intend to lay him off because he has work for the applicant.

Respondents’ Submissions

19Mr. Mistry submitted that he would not have hired the applicant at all if he harboured the hatred against Chinese people the applicant attributed to him and could have laid him off at any time. Mr. Mistry submitted that the applicant quit because he did not receive the raise he wanted and hoped Mr. Mistry would beg him to stay.

20Regarding the Employment Insurance proceedings, Mr. Mistry noted that the record reflected that the applicant hoped to return to work with the respondents, which suggests that the applicant did not find the workplace to be as hostile as alleged. In Mr. Mistry’s view, the applicant was a disgruntled employee who only pursued an Application to the Tribunal because he was denied Employment Insurance benefits.

Analysis and Decision

21Section 5 of the Code states as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

22In Phipps v. Toronto Police Services Board, 2009 HRTO 877, the Tribunal summarized the principles that apply in cases involving allegations of racial discrimination as follows at paragraph 16:

a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).

23The applicant has the initial evidentiary onus of establishing, on a balance of probabilities, a prima facie case that the respondent discriminated against him because of his race or colour. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent…”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at paragraph 28.

24The applicant, a Chinese man, alleged that his pay was reduced arbitrarily and that he was subjected to racial epithets and was forced to resign his employment. Without an explanation from the respondents, this evidence would in my view support a finding of discrimination. Accordingly, the applicant has established a prima facie case. I find, however, that the respondents have provided a rational, non-discriminatory, explanation for its behaviour and that some of the applicant’s allegations do not amount to discrimination.

25There is no dispute that the respondents reduced the applicant’s wage to $14 per hour after he worked for Aero for one week. However, far from discounting the applicant’s training and experience, Mr. Mistry hired the applicant because his experience, which his resume stated included three years of CNC programming and set up, led Mr. Mistry to believe the applicant could meet his expectations. Despite his experience, the applicant was not as productive as the respondents expected. This fact was not really disputed as the applicant’s evidence was that he had no experience with the machines used by Aero. The evidence, including the Employment Insurance Docket, also indicates that the applicant did not consider himself to have mastered his job until several months later when he asked for a raise to $18 per hour. Rather than terminate the applicant’s employment, as they could have at any point in his employment, the respondents chose to allow him to continue his employment and increased his pay as he gained proficiency.

26I attached little weight to the labour market research provided by the applicant. His research indicated that CNC Lathe operators receive higher pay than the respondents paid him. However, those higher wages were available for qualified operators, which the applicant turned out not to be. I find that Mr. Mistry hired the applicant because he believed he would be able to operate the CNC Lathe satisfactorily. The respondents were prepared to pay the applicant a wage consistent with the applicant’s research until it became apparent that the applicant was not able to operate the CNC Lathe to their expectations. The wages the respondents paid him later in his employment appear to be within the range for CNC operators, albeit at the lower end. In the circumstances, I find that the respondents lowered the applicant’s wage because he did not perform as expected and the applicant’s race, colour and place of origin were not a factor in the decision to reduce the applicant’s wage.

27The respondents did not address the applicant’s testimony that he found the microwave door open on two occasions. Other than the applicant’s speculation, however, there is no evidence that Mr. Mistry was responsible for leaving the microwave open, that the door being open had some connection to the applicant’s food or that Mr. Mistry took any issue with the food the applicant brought for lunch. Consequently, I find these allegations provide no basis for a finding of discrimination.

28The applicant’s evidence was that Mr. Mistry stopped eating with the staff shortly after he began working, which he speculated was due to cultural differences. However, in cross examination, the applicant acknowledged that he took his lunch at a different time than the other employees and that he observed Mr. Mistry eating with the other employees until he began taking his lunch in his office. Accordingly, it is not clear on the applicant’s evidence that Mr. Mistry ever took his lunch with the applicant. Therefore, any change in his eating habits cannot be attributed to discrimination against the applicant.

29I find it most likely that Mr. Mistry confirmed the applicant’s immigration status with Ms. Xian before he hired him, which would be a prudent procedure. Accordingly, I find that Mr. Mistry had no reason to ask the applicant about his immigration status and did not do so. Even if the inquiry was made, the applicant suffered no negative consequences.

30The applicant testified that Mr. Mistry said “Fuck-you Chinese” when the applicant had difficulty explaining his work to him and that Mr. Mistry forced him to resign. I find it is more probable that Mr. Mistry did neither. In making this finding, I am particularly influenced by the Employment Insurance Appeal Docket. Pursuant, to section 29(c)(iii) of the Employment Insurance Act (which the Commission included in its submission to the Board of Referees) discrimination on a prohibited ground of discrimination with the meaning of the Canadian Human Rights Act can be just cause for voluntarily leaving employment. The Canadian Human Rights Act prohibits discrimination in employment because of, amongst other things, race, national and ethnic origin and colour. If the applicant believed that Mr. Mistry’s criticism of him was because of discrimination, demonstrated by racist comments, it is more probable than not that he would have raised the issue (or any of his other human rights based allegations for that matter) with the Employment Insurance Commission when he applied for benefits or with the Board of Referees on appeal. The fact that he did not do so suggests that Mr. Mistry did not utter the racist slur attributed to him and I find that he did not.

31At the appeal before the Board of Referees, the applicant did assert that Mr. Mistry required him to quit or be fired. The applicant’s previous representations to the Employment Insurance Commission and his narrative regarding the appeal indicated that he voluntarily quit when the respondents refused to increase his wage to $18 per hour. Mr. Mistry’s evidence that the applicant quit voluntarily and that he had no intention of dismissing him has been consistent throughout the Employment Insurance proceedings and the litigation of this Application. His account is also more plausible in my view, since he could have dismissed the applicant if his services were no longer required. Consequently, I find the applicant resigned his employment with the respondents because he was dissatisfied with his pay and that neither discrimination nor harassment contrary to the Code was a factor in the termination of his employment.

32For the foregoing reasons, I find, on a balance of probabilities, that the applicant was not subject to discrimination in violation of the Code. The Application is dismissed.