Nguyen v. Lorama Group Inc., 2016 HRTO 1032

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Long Nguyen

Applicant

-and-

Lorama Group Inc.

Respondent

DECISION

Adjudicator: Maureen Doyle Date: August 3, 2016 Citation: 2016 HRTO 1032 Indexed as: Nguyen v. Lorama Group Inc.

APPEARANCES

Long Nguyen, Applicant Self-represented

Lorama Group Inc., Respondent Mirceta Elez, Representative

Introduction

1This Application alleges discrimination with respect to employment because of race and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a Case Assessment Direction (“CAD”) dated December 22, 2015, the Tribunal directed that a Summary Hearing by way of conference call be convened.

3The Summary Hearing was convened and all parties participated. A Vietnamese-English language interpreter provided interpretation for the applicant.

4As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. The applicant has not been able to point to any evidence, or any evidence that reasonably may be available to him, beyond his own suspicions that the respondent’s alleged actions were taken due to his race or age.

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

7The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

8However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any evidence which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

9As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

10Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

The ALLEGED Facts

11The applicant was hired under a contract to work as a machine operator for the respondent. He commenced work there on August 18, 2015, and his employment was terminated on November 13, 2015. He alleges that his termination was for discriminatory reasons, contrary to the Code, on the grounds of race and age.

12The applicant alleges that his employment was terminated due to a mistake made by a co-worker, but that he was terminated because he is “a small guy” and “the only Vietnamese in this company”.

13In the narrative contained in his Application, he alleges that he was discriminated against and treated unfairly frequently by his supervisor, R, and a lead hand, M.

14In particular, he alleges that R discriminated against him because on his first day at work, R did not give him a uniform or a permanent punch card. He alleges that usually new employees get a uniform at some point during their first week at work, but that he worked there for more than two months without receiving a uniform.

15In his Application, he also alleges that R, the supervisor, let him work alone on the machine in his first two weeks, even though she knew he was a new employee.

16He alleges that he did not receive enough training and that M, a lead hand, who was responsible for training new employees, did not train him properly and harassed him with “threats and yells”.

17The applicant also alleges in his Application that R came and harassed him every day about safety tests he would have to pass, and telling him that if he did not pass the safety tests he would not be permitted to work on the floor, and his employment could be terminated. He alleges that another employee who started work got a uniform in a timely fashion and R did not ask him to do a test.

18Finally, with respect to the termination of his employment, he alleges that on November 13, 2015, a mistake was made by M, who set up the machine and let it run all night. He also indicates that a mistake was the fault of “QC”. It is not entirely clear from his narrative what the mistake was, but he alleges that when R found out about the mistake, she discriminated against him and terminated his employment. He alleges that he asked for a termination letter which would state the reason for letting him go, but that she did not give him a letter.

19At the summary hearing, the applicant alleged that he had “a problem” with M and that he would not train him properly. He alleged that he once made a complaint to a female supervisor and that the supervisor came to try to mediate the dispute between them, but that he ended up with a warning from the company.

20At the summary hearing he also stated that the company has a number of “safety cleaning tasks” it requires to be done, but that he was not paid for doing them. He also alleged that he asked for a uniform for cleaning out and painting the machines, but that others had them and he waited three months for one and still did not get it, even though the supervisor told him he would get one soon.

21At the summary hearing, the applicant also stated that he was once required to run a machine which required two operators, and that a lead hand reported his performance as being slow. He did not identify the lead hand.

22At the summary hearing, he stated that he complained about all of these things to his co-workers and he believes that a manager heard him and that the termination on November 13, 2015 was the way in which they responded to his concerns. He alleged that on November 13, 2015, he was given directions from “QC” regarding what type and volume of paint should go into the container and that he followed those directions. He alleged that he thinks that QC gave him incorrect directions and that when the supervisor saw this, the supervisor complained about him.

23At the summary hearing, he stated that he had received one prior warning due to an argument he had with a supervisor, and disagreed with the version presented by the respondent in its Response to the Application, wherein it stated that he had received three warnings when he was terminated. It asserted that he had received a warning for having given a co-worker “the finger”, but at the summary hearing he stated that he had received no written warning for that as there is no policy about giving a co-worker “the finger”. With respect to the warning he says he did receive, he says he told a worker not to listen to a third worker when the third worker, who does not work in their area, was “trying to boss” the worker.

24When asked what evidence he had that the respondent had discriminated against him due to his age or race, he stated that the lead hand, M, had said on September 15, 2015, that he was “short and old”. He stated that the majority of workers there are from the Philippines, India and Canada, and that he was the only one from Vietnam. He stated that the average age of employees at the respondent is in their 30s or 40s, and he is in his 50s.

Findings

25I find that the Application stands no reasonable prospect of success under the Code.

26It is clear that the applicant feels unfairly treated. However, as noted above, the Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's alleged adverse treatment of the applicant is differential and is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, there must be differential treatment and the prohibited ground must be connected to the adverse treatment.

27I find that the applicant has not pointed to evidence in his possession or that may be reasonably available to him which would link the respondent’s alleged actions with the grounds of race and age which he cites in his Application. He indicates he is the only employee at the Respondent who is Vietnamese and that he is the only employee in his 50s. Membership in a group protected by the Code is not sufficient to prove discrimination. He must be able to provide evidence of differential treatment due to membership in a group which is protected by the Code in order to be able to establish discrimination.

28With respect to certain of the applicant’s allegations, he has not made an allegation of differential treatment. In respect of his allegation that M did not provide him with proper training or that he yelled at the applicant, he has made no allegation of differential treatment. He does not allege, for example, that M trained everyone else perfectly, but refused to do the same for him, or that M was even-tempered with or uncritical of other employees. He does not indicate what M yelled at him. With respect to the applicant’s allegation that he was not paid to perform what he calls “safety cleaning tasks”, he has made no allegation of differential treatment. He does not allege, for example, that others were paid to do that work. Without an allegation that the treatment he received in these regards was differential, there is no possibility that he will be able to establish discrimination. Accordingly these allegations are dismissed on the basis of no reasonable prospect of success.

29The applicant has not pointed to any connection between his race and any of the respondent’s alleged actions. Without such a connection, he will not be able to establish discrimination and his application has no reasonable prospect of success in this regard.

30With respect to age, though he says that M called him “old” on one occasion, there is no indication that he shared this concern with the respondent, and he has pointed to no evidence which would link this comment with the respondent’s failure to provide him with a uniform or punch card, the supervisor’s decision to assign him to work on a machine alone, the allegation that the supervisor “harassed” him about passing a safety test as a requirement for working on the plant floor, or the allegation that he was differentially treated in this regard because another employee did not have to do a safety test, or the respondent’s decision to terminate his employment. Indeed, in respect of his employment, he does not deny having engaged in two arguments with a supervisor and having given a co-worker “the finger”, nor does he dispute that an error was made on November 13, 2015. He simply alleges that he was not responsible for the error and that he received no written warning regarding having given a co-worker “the finger”.

31As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to differential treatment and some evidence, beyond his or her own suspicions, that could make out a link to the Code. As noted above, in respect of certain allegations, the applicant has not alleged differential treatment. With respect to remaining allegations, they are based upon speculation and he has not identified evidence he has or could reasonably provide to establish that the respondent took its actions due to grounds prohibited by the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

Order

32For the above reasons, the Application is dismissed as having no reasonable prospect of success.