Canadian Employment Law Today

6 | May 15, 2019 Cases and Trends Canadian HR Reporter, 2019 ployee. He had issues with Shah's job per- formance and found Shah to be confron- tational 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 as- sessment 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 proba- tionary 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 assess- ment on Sept. 5, which found Shah had im- proved 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 super- visor if he thought co-workers weren't follow- ing 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 ser- vice. Shah said he was caught off-guard be- cause they had never talked about his per- formance, 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 under- stand 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 con- vince 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 contin- ued to question Weiss' beliefs. e next day, Weiss and the assistant engi- neering 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 schedul- ing 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 meet- ing to discuss Shah's performance and be- haviour 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, de- fiance 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 com- plaints, 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. e hotel concluded that Weiss had engaged in inappropriate conduct and conducted discrimination and harass- ment 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 perform- ing 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 discov- ered 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 dur- ing that time period, he could face disciplin- ary 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 hav- ing problems with his work on the swim- ming 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 ex- pectations but was having problems with the others. By the end of the plan on Jan. 25, the hotel found Shah continued to have perfor- mance 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 ab- sent 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 employ- ment on the basis of physical disability and religion. e hotel said there was no discrim- ination and applied to dismiss the complaint. e 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 ter- minate his employment, so it couldn't have been a factor in Shah's termination. "e overwhelming preponderance of evidence is that the general manager and director of human resources made their de- cision 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. e 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 com- ments related to religion, the documenta- tion and complaints from other employees over most of Shah's time at the Hyatt backed up the hotel's claimed reason for termina- tion. Shah's complaint about Weiss' com- ments 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. e tribunal noted that Shah was given plenty of opportunity to improve through numerous assessments and the perfor- mance improvement plan, but Shah con- tinued to have performance-related issues. ough 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. e tribunal dismissed Shah's complaint. For more information see: • Shah v. Hyatt Regency Vancouver and another, 2019 BCHRT 46 (B.C. Human Rights Trib.). « from UNSUCCESSFUL on page 1 Employee's medical leave delayed termination meeting

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