Li Dong Wang v. TS Tech Canada Inc., 2016 HRTO 401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Li Dong Wang

Applicant

-and-

TS Tech Canada Inc.

Respondent

DECISION

Adjudicator: David Muir

Date: March 30, 2016

Citation: 2016 HRTO 401

Indexed as: Wang v. TS Tech Canada Inc.

APPEARANCES

Li Dong Wang, Applicant

Self-represented

TS Tech Canada Inc., Respondent

Brian Silva, Counsel

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

The Dispute

2The applicant was employed by a placement agency that placed him with the respondent, a manufacturer of automobile parts. The applicant was one of a number of trainees who were hired at the same time. The applicant’s first day of work was March 17 and his last was March 20, 2015.

3In his Application the applicant alleges that Mr. Huang, a Training Coordinator employed by the respondent, asked him his age and then said that he was old for the job. The applicant alleges that Mr. Huang treated him badly and taught him nothing. The applicant stopped working after three days.

4The applicant believes that he was perceived to be too old for the job and was deliberately not provided with training so that the respondent could terminate his employment when he failed to pass through the training program.

5The respondent denies the allegations except to the extent that it agrees that Mr. Huang did ask the applicant how old he was. However, the respondent denies that the applicant suffered any adverse impact from this question and was not told that he was too old for the job. The respondent also alleges that Mr. Huang was not a trainer and did not participate directly in the training of the applicant. The respondent states that it never received a complaint from the applicant and in an exit interview he told his employer, the employment agency, that he had found another job closer to his home.

6A hearing was held on March 29, 2016. I heard from the applicant and three witnesses for the respondent. Mr. Huang, Mr. Wood and Ms. Chen. An interpreter was provided by the Tribunal who assisted with the interpretation of Mr. Huang’s evidence. Each of the respondent’s witnesses adopted their will say statements subject to any questions asked of them at the hearing.

7The Application is dismissed because there is insufficient evidence to establish that the applicant experienced discrimination in the workplace. The applicant believes that he was not trained properly as a deliberate strategy on the part of the respondent to justify his termination. There is simply no evidence that this was the case. With respect to the evidence that Mr. Huang asked the applicant how old he was, even if I were to accept the applicant’s evidence of the other comments made in the context of this question, such comments in and of themselves are insufficient to establish a breach of the Code.

8The applicant’s argument is that he was told that he was too old for the job by Mr. Huang and that the respondent then failed to train him in the hopes that he would fail and be fired or quit. The applicant testified that Mr. Huang did not train him and he felt bad and believed that he was being set up to fail. He testified that he was trained by the worker standing beside him who would complain that he was not a trainer. He testified that he was told by someone that after a week he would have to take a test and if he failed he would be fired. He testified as well that he approached Mr. Huang on two occasions but Mr. Huang said he was too busy and to talk to his trainer.

9Despite the limited factual foundation offered by the applicant in his evidence I did call on the respondent to call evidence with respect to the applicant’s argument that the respondent failed to train the applicant in the hopes that he would fail and that this all flowed from Mr. Huang’s alleged belief that the applicant was too old for the job.

Analysis and Decision

10The applicant was a trainee welder employed by an employment agency and placed with the respondent on March 17, 2015 in the welding department. The respondent fabricates parts for automobiles. The parties agree that the training coordinator, Mr. Huang, asked the applicant what his age was. The applicant also alleges that Mr. Huang said something to the effect that he, the applicant, was too old for the job. Mr. Huang denies saying anything else about the applicant’s age. Mr. Huang testified that he asked this question of apparently older workers with a view to ensuring that they are not assigned to the heavier jobs so as to avoid avoidable injuries.

11I find that it is possible that Mr.Huang said more than simply asking the applicant his age – although I also find that it does not matter because even if I were to accept the applicant’s version of what was said these comments do not in and of themselves amount to a violation of the Code. I find that even if I were to accept the applicant’s evidence on this point entirely, the comments on their own were not discriminatory. In coming to this conclusion I recognize that the Tribunal has concluded in some instances that some comments made only once can be discriminatory because they are so egregious that they immediately poison the workplace environment. The comments made by Mr. Huang taken at their highest are not sufficiently egregious to justify such a conclusion. See, Seguin v. Labourers International Union, Local 527, 2012 HRTO 1103 and the cases cited therein.

12More importantly there is no evidence, even if Mr. Huang was concerned about the applicant’s age and/or made the alleged comments, of any subsequent differential treatment or adverse consequences for the applicant. The applicant’s view that Mr. Huang was responsible for training rests entirely on his job title. However I accept the uncontradicted evidence of Mr. Huang and Mr. Wood, Section Manager, Weld Department and Mr. Huang’s superior, that Mr. Huang did not provide training – his role was to keep track of the training conducted by more seasoned workers directly on the line and to report these results to Mr. Wood. The applicant does not allege that the worker(s) to whom he was assigned treated him any differently because of his age.

13I also accept the uncontradicted evidence of Mr. Huang and Mr. Wood that the applicant was assigned to precisely the same training work as every other trainee over the three days that he worked. There is little indication of how Mr. Wang was performing and no indication of any concern on the part of the respondent

14The applicant agrees that he did not complain to anyone about Mr. Huang’s comments or what he now alleges was differential treatment in the provision of training. The applicant testified that he believed he was being set up to fail and was told by a co-worker that there was a test and if he failed the test he would be terminated. The applicant chose to quit.

15The applicant agrees that no one in management told him there was test that he must pass after a week or he would be terminated. I also accept the uncontradicted evidence of the respondent’s witness that there is no test as such and that the first response if there are deficiencies in performance of a trainee is not termination but further training and coaching. As indicated, as of the time the applicant quit, the respondent had no indication that there was a problem with Mr. Wang’s employment.

16Ms. Chen was employed on site as an agent of the employment agency which placed the applicant with the respondent. She no longer is employed by the agency and has no connection to the respondent or her former employer and attended the hearing under summons. Ms. Chen testified that the applicant made no complaint to her about Mr. Huang’s comments or a lack of training but told her that he wanted a job closer to his home – that the respondent’s workplace was too far from his home. The applicant denies saying anything like that but I accept Ms. Chen’s evidence on this point. She gave her evidence in a straightforward manner and is completely independent of the parties. I also have considered in this regard that the person who drove the applicant to work also quit, for unrelated reasons, leaving the applicant without a lift to work. When I asked him how he would get to work without a ride from his friend he said he did not know. In all of the circumstances I find that it is more likely than not that the applicant told Ms. Chen that he was leaving for reasons unrelated to the alleged discriminatory treatment.

17In conclusion there is no real basis to this claim. It may be as the applicant stated repeatedly during the hearing that he felt he was treated unfairly in not being properly trained by the respondent and that is a violation of “labour law” and the Code, however even if the training was inadequate that is not a violation of the Code unless it can be shown that the failure to train was linked to the applicant’s age and a perception that he was not up to the job because of his age. As indicated above there is no evidence at all that this was the case.

18Accordingly, the Application is dismissed.