Zhou v. Heidelberg Materials, 2026 BCHRT 155
Date Issued: July 17, 2026
File: CS-002570
Indexed as: Zhou v. Heidelberg Materials, 2026 BCHRT 155
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Xue Miao (Walter) Zhou
COMPLAINANT
AND:
Heidelberg Materials
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Trevor Thomas
Counsel for the Respondent: Matthew Allard
Date of Hearing: February 13-15 and August 1, 2 & 7, 2024
Location of Hearing: Videoconference
I INTRODUCTION
[1] Xue Miao (Walter) Zhou is an immigrant to Canada from China. He alleges his former employer, Heidelberg Materials discriminated against him in employment based on race, ancestry, colour, and place of origin contrary to s. 13 of the Human Rights Code. For efficiency and because nothing turns on the distinction between the four protected characteristics, I refer to Mr. Zhou’s protected characteristics as “race” in this decision.
[2] Mr. Zhou was hired by Heidelberg as a millwright on September 9, 2019, and terminated on October 29, 2019. Mr. Zhou alleges that during his employment Heidelberg discriminated against him based on his race by treating him differently than other employees and unfairly criticizing his work, all of which culminated in his termination.
[3] Heidelberg denies discriminating. It says that to the extent that Mr. Zhou was treated differently, that differential treatment was based solely on his status as a probationary employee and had no connection with his race. It says it terminated Mr. Zhou during his probationary period for entirely non-discriminatory performance reasons.
[4] The Tribunal held a six-day hearing of this complaint. The hearing was conducted by another member of the Tribunal. I am the Member assigned to decide this complaint. The parties were given notice of the complaint’s reassignment and given an opportunity to raise objections to proceeding in this way. Neither party objected. To make my decision, I have listened to the full recording of the hearing and considered all of the parties’ evidence and submissions. This decision does not include a full recitation of that information, but only what is necessary to come to a decision.
[5] My task in this decision is to determine, first, whether Mr. Zhou was treated differently during his employment, and if so, whether his race was a factor in that treatment. And second, whether Mr. Zhou’s race was a factor in Heidelberg’s decision to fire him.
[6] For the reasons that follow, I find that Mr. Zhou has not established a breach of the Code and I dismiss the complaint.
II BACKGROUND
[7] Mr. Zhou immigrated to Canada from China in 1999. He has a Bachelor of Science degree in mechanical engineering, and he worked as a maintenance engineer and maintenance supervisor for seven years in China prior to immigrating. He continued to work in his field after arriving in Canada and obtained Red Seal certification as a millwright in August 2009. The Red Seal Program creates a common set of standards across Canada for skilled tradespeople.
[8] Heidelberg is a manufacturer and supplier of cement, concrete, and asphalt. It operates one of two cement manufacturing plants in the province. The plant is over 30 acres in size and there are many high towers and large manufacturing machinery all over the plant.
[9] Mr. Zhou was hired by Heidelberg as a millwright and began working at their manufacturing plant on September 9, 2019. As a millwright, Mr. Zhou was responsible for performing maintenance and repair work on the large industrial equipment at the plant. The workplace is governed by a collective agreement which provides that newly hired employees are on probation for their first 600 working hours. Mr. Zhou worked under a maintenance supervisor and a senior maintenance supervisor who would assign work to the millwrights.
[10] Heidelberg did not provide Mr. Zhou with a radio to communicate with other employees during his shifts, nor was he given a key to the tool room where large equipment and tools are stored. Mr. Zhou alleges that he was the only employee who was not given a radio or a tool room key.
[11] Employees who need personal protective equipment (PPE) can obtain them through a vending machine that is accessed with a swipe card or in a nearby storeroom. Mr. Zhou was provided a swipe card to access the vending machine but says his card did not work and he could not get PPE from the vending machine. Mr. Zhou alleges that he was the only employee who was not given a working swipe card.
[12] On October 10, 2019, Mr. Zhou met with the supervisor and senior supervisor for a performance review. Mr. Zhou argues that he was not informed that he would be subject to interim performance reviews and says he was the only employee who was subjected to a performance review at the 200-hour mark. The supervisors discussed Mr. Zhou’s performance to date. They said Mr. Zhou needed to improve his efficiency and speed of his welding work. Mr. Zhou recalls that he disagreed with his assessment and explained that his welding work was slow because he was unable to locate larger pieces of metal to use. Mr. Zhou did not understand from his performance review that his employment was in jeopardy if he did not improve.
[13] The supervisor kept written notes recording his observations about Mr. Zhou’s performance. The notes state that on October 18, 2019, Mr. Zhou was not performing to expected standards. On October 19, 2019, someone reported that Mr. Zhou throwing debris from a tower. On October 23, 2019, Mr. Zhou was observed moving a conveyor pulley by hand rather than using a vehicle. On October 24, 2019, Mr. Zhou requiring other millwrights’ help for tasks that involved dusty locations.
[14] On October 29, 2019, prior to the completion of his probation period, Mr. Zhou was terminated at a meeting with the supervisor, manager, and an HR staff person.
III ANALYSIS AND DECISION
A. General Legal Principles
[15] To prove discrimination under s. 13 of the Code, Mr. Zhou must prove, on a balance of probabilities, that he has characteristics protected under the Code, he was adversely impacted in his employment; and his race was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[16] There is no dispute that Mr. Zhou is a racialized person from China and I accept that his race is a protected characteristic. Mr. Zhou does not have to prove that his race was the only factor, overriding factor, or even a significant factor in the alleged adverse impact he experienced: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39 at paras. 45-52; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 46. He must only prove that his race was a factor. However, there is no presumption of discrimination: Bombardier at para. 88. Any inference of discrimination must be rooted in the evidence of a particular case: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 104.
[17] Discrimination on the basis of race is frequently subtle: Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60 at para. 28. The Tribunal has recognised that racialized complainants like Mr. Zhou often face difficulty in proving discrimination based on characteristics related to race because people seldom express biases, prejudices, and unconscious beliefs openly: Ochebiri v. Corrpro Canada, 2019 BCHRT 99 at para. 66; Batson-Dottin v. Forensic Psychiatric Hospital (No. 2), 2018 BCHRT 246 at para. 4. Typically, whether these characteristics are a factor in the adverse impact a complainant experienced “is gleaned from reasonable inferences drawn from all of the circumstances”: Ochebiri at para. 66. Put another way, an inference of discrimination may be drawn “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44; Abbott v. Toronto Police Services Board, 2009 HRTO 1909 at para. 31; Campbell No. 4 at para. 103. Differential treatment alone is not sufficient to establish discrimination and not every distinction constitutes discrimination: Hall v. B.C. (Ministry of Environment) (No. 5), 2009 BCHRT 389 at para. 83.
[18] Once a complainant has established that they are a member of a protected group and that they received differential treatment, the evidentiary burden may shift to the respondent to show that membership in the protected group was not a factor in the differential treatment. This is because, having established the first two elements of the Moore test, the inference may arise that membership in the protected group was a factor in the differential treatment. In such a case the respondent may rebut that inference by leading credible evidence of a non-discriminatory reason for their conduct: Brar and others v. B.C. Veterinary Medical Association and Osborne, 2015 BCHRT 151 at paras. 752-756. However, the legal burden remains on the complainant to establish a prima facie case of discrimination.
[19] The Tribunal has long held that termination of employment is an adverse impact, and Heidelberg does not dispute that Mr. Zhou was terminated. However, Heidelberg disputes that Mr. Zhou was treated differently than other employees, and to the extent that he was, says the treatment does not amount to an adverse impact under the Code. Therefore, the issues I must decide is whether Mr. Zhou has proven that his race was a factor in how he was treated by Heidelberg during his employment, and whether his race was a factor in Heidelberg’s decision to terminate him.
B. Witnesses and Credibility
[20] Seven witnesses testified over the six-day hearing. Mr. Zhou testified on his own behalf and did not call any other witnesses. Heidelberg called six witnesses including the maintenance supervisor and senior maintenance supervisor who directly supervised Mr. Zhou, the maintenance manager, a senior millwright, a mechanic, and an HR staff person.
[21] The parties dispute whether Mr. Zhou’s race was a factor in his treatment and his termination. There are discrepancies between the parties’ versions of events. Where necessary I have assessed the witnesses’ credibility and reliability to make findings of fact on a balance of probabilities.
[22] Credibility and reliability are distinct concepts. Credibility considers the truthfulness of a witness’s testimony while reliability considers its accuracy: Christensen v. Save-a-Lot Holdings Corp. (No. 3), 2023 BCHRT 125 at para. 13.
[23] I can accept all, some, or none of a witness’ testimony and I may attach different weight to different parts of a witness’ testimony: Meldrum v. Astro Ventures Ltd., 2013 BCHRT 144 at para. 4; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 18.
[24] In assessing a witness’ credibility and reliability I have considered such factors as a witness’s ability and opportunity to accurately observe, recall, and recount events, whether the evidence is plausible, whether supporting or contradictory evidence exists, and whether the evidence is internally or externally consistent: Harder v. Tupas-Singh and another, 2022 BCHRT 50 at para. 6. Where the parties give conflicting evidence, I have examined whether each witness’s evidence was in “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”: Faryna v. Chorny, 1951 CanLII 252 (BC CA) at para. 11.
[25] In this case, witnesses were testifying about events that happened nearly five years prior to the hearing. Memories have understandably faded, shifted, or calcified around a particular version of events. I have found that some of the discrepancies between the parties’ versions of events can be attributed to their different perspectives on events. I accept that all witnesses testified honestly, sincerely believing the evidence they gave was truthful. Below I explain the evidence before me and how I reached specific findings of fact.
[26] Mr. Zhou says he was adversely impacted in employment because Heidelberg treated him differently. He says he was the only employee who was not given a radio, who was not given keys to access the tool room, who was unable to use a vending machine to obtain PPE, and who was required to undergo a performance review. He says his performance was unfairly criticized and deemed to be poor, culminating in his termination. I will deal with each of the allegations in turn.
C. Radio Access
[27] Mr. Zhou alleges that Heidelberg did not provide him a radio when he requested one. He says the refusal was because of his race. It is undisputed that Mr. Zhou was not given a radio during his shifts. Mr. Zhou argues that he was the only millwright who was not issued a radio. I understand Mr. Zhou to be arguing that because he was the only employee who was treated differently, and because Heidelberg has not provided a credible reason for this treatment, the Tribunal should infer it was because of his race.
[28] Heidelberg says probationary millwrights are not issued radios, and that Mr. Zhou was not given a radio because he was a probationary millwright. The manager testified that radios are issued to the production crew, employees on first aid, and only two senior millwrights who perform walkaround duties patrolling the whole plant. Heidelberg says Mr. Zhou’s race was not a factor in its decision not to issue Mr. Zhou a radio.
[29] For the following reasons I find Mr. Zhou has not established that his race was a factor in not being provided a radio.
[30] First, there is insufficient evidence before me to conclude that Mr. Zhou was the only millwright who was not provided a radio. Mr. Zhou’s assertion is based on his belief that it would be safer for millwrights to carry radios. Heidelberg’s witnesses uniformly dispute that all other millwrights were given radios. The senior supervisor testified that radios are only issued to those millwrights who perform walkaround duties because they patrol the whole plant. A senior millwright testified that he would carry a radio when he performed walkaround duties but other millwrights, who were tasked with performing specific repairs, do not carry radios. Heidelberg’s evidence that not all millwrights are given radios was consistent both internally and among the witnesses.
[31] Second, I am not persuaded that Heidelberg’s assertion that not all millwrights are given radios is not credible. Mr. Zhou argues that Heidelberg’s evidence is inconsistent with their assertion that safety in the workplace is a priority. He argues that it is unbelievable that Heidelberg would not provide all millwrights with radios which would mitigate safety risks. He points to his onboarding materials which stresses workplace safety and the requirement for employees to work safely. He says that it is more believable that every employee would be issued a radio because the plant is large and employees may need to communicate with one another. He says that radios transmit to all employees so issues with machines or safety issues can be quickly identified and communicated.
[32] I appreciate Mr. Zhou believes it would be safer for all millwrights to be given radios. However, both the supervisor and senior supervisor testified that millwrights not being given radios does not negatively impact safety or productivity. The undisputed evidence is that there are hard-wired phones at various locations in the plant so employees can communicate with one another. The supervisor explained that employees who are issued radios, such as millwrights performing walkaround duties and first aid staff, are mobile. The manager testified that millwrights who are assigned to perform a specific repair in a remote area such as in a high tower or on a conveyor belt may be assigned a radio but that would be an exceptional circumstance. Millwrights who perform general duties would not require, nor would they be issued, a radio. I accept that Heidelberg does not believe millwrights not having radios poses a safety risk. I understand Mr. Zhou disagrees with Heidelberg’s stated business practice regarding the issuance of radios. However, it is not the role of the Tribunal to decide if a business practice is appropriate or safe.
[33] Mr. Zhou also argues that Heidelberg’s witnesses are not credible because there are inconsistencies in their testimonies. He points out that the senior millwright testified that he kept his radio in his personal locker while the manager testified that all radios are stored in the supervisor’s office. The manager also testified that employees who are assigned to work atop towers are issued radios while the supervisor testified that they are not issued radios.
[34] I am not persuaded that the inconsistencies between the testimonies of Heidelberg’s witnesses are sufficient to undermine their credibility on the central issue of whether Mr. Zhou was the only millwright not issued a radio. I accept that witnesses’ fading memories of business practices that were in place nearly five years ago is to be expected. I find the individual witnesses’ recollection of where radios were kept does not undermine their credibility regarding the issue of whether radios were given to all millwrights. Similarly, I find the conflicting evidence on whether a millwright would be issued a radio if they were working atop a tower does not undermine their credibility on the central issue that I must decide. On the central issue of whether radios are given to all millwrights, the witnesses were clear and consistent saying they were not.
[35] I find that Mr. Zhou has not established that Heidelberg gave radios to all its other millwrights and that he was the sole millwright who worked without a radio. Therefore, Mr. Zhou has not proven his assertion that not having a radio adversely impacted him in his employment. There is also no basis to say Heidelberg treated him differently based on his race by not providing him with a radio.
D. Tool Room Access
[36] Mr. Zhou alleges that Heidelberg refused to provide him with a key to access the tool room because of his race. It is undisputed that Mr. Zhou was not given a key to access the tool room. Mr. Zhou says it is more likely than not that all millwrights are given keys, but he was not because of his race. Heidelberg says that keys are not given to probationary millwrights, and this was why Mr. Zhou was not given keys.
[37] Mr. Zhou did not explain the basis for why he believes his race was a factor in not being given a key. He testified that it was a feeling that he had. In his closing arguments he submits that millwrights are the key to productivity as they are required to perform timely repairs to equipment so that production is not interrupted. He argues that it is unbelievable that millwrights would not be given keys to get tools from the tool room and the more likely explanation is that other millwrights were given keys, but he was not because of his race.
[38] I find the evidence is insufficient to find that Mr. Zhou’s race was a factor in Heidelberg not giving him keys to the tool room. I appreciate that discrimination based on race can be subtle but here Mr. Zhou has pointed to no evidence other than his bare assertion that he was disliked and his belief that it would be more efficient to be given keys to support an inference that his race was a factor in his treatment.
[39] The manager, supervisor, and senior supervisor each testified that probationary millwrights are not given keys to the tool room. Mr. Zhou argues that Heidelberg’s witnesses gave inconsistent testimony about when the tool room is locked and when it is left open, so their evidence is not credible. I agree the witnesses disagreed on some details of when the tool room is unlocked, but on the central issue of whether any probationary millwright is issued a key to the tool room, they were consistent in confirming they are not. They were further consistent in testifying that a probationary millwright not being given a key would not negatively impact the performance of their job. I find that any discrepancy in the witnesses’ recollection is not sufficient to give rise to an inference that Mr. Zhou’s race was a factor in him not getting a key. Viewed in its entirety, I find that probationary millwrights are not given keys to the tool room. I am not persuaded that Mr. Zhou’s race was a factor in his not being given a key.
E. PPE Vending Machine Access
[40] There is no dispute that: the PPE vending machine stores PPE such as safety gloves and glasses; PPE is available freely for all employees who can access the machine with a swipe card; and that Heidelberg issues the swipe cards and uses them to track the inventory of PPE and the usage by employees. Mr. Zhou was issued a swipe card, but he says that it did not work on the machine. Mr. Zhou alleges he was the only employee given a non-functioning swipe card and asks me to infer this was because of his race.
[41] Again, Mr. Zhou has provided little to explain why he believes being given a defective swipe card was due to his race. Mr. Zhou testified that he believes he was the only employee given a non-functioning and other employees could access the vending machine. Mr. Zhou says when he borrowed and used the cards of other employees, he had no issues obtaining PPE from the vending machine. From this he concludes that he was the only employee given a non-functioning card. Mr. Zhou argues that Heidelberg’s evidence that this was a common issue for all employee is not credible because it would be disruptive to plant operations and the more plausible explanation is that he was the only employee given a defective card because of his race.
[42] Heidelberg called evidence that the vending machine is prone to malfunctions and many employees are unable to obtain PPE through the vending machine. The supervisor testified that the vending machine often does not work. As a workaround Heidelberg has a counter adjacent to the machine where employees can get PPE. He said the counter is stocked with all of the materials available inside the vending machine. The manager testified that half the time the vending machine does not work and his own swipe card does not allow him to get PPE from the machine. He said that the vending machines are the property of, and maintained by, a third-party company so when there are malfunctions Heidelberg reports it but cannot fix it.
[43] I prefer the evidence of Heidelberg’s witnesses which is consistent both internally and with each other. I accept that being unable to use the swipe cards to obtain PPE is an issue endemic to all employees of Heidelberg. I appreciate that not being able to obtain PPE from the vending machine is disruptive, however that alone is insufficient to render Heidelberg’s evidence on this point not credible. The undisputed evidence before me is that Heidelberg had a workaround by setting up a counter, so that employees could obtain PPE when the vending machine was not working. Mr. Zhou confirmed in cross-examination that he went to the counter where he requested and was given PPE. In my view, such a workaround would be unnecessary if Mr. Zhou was the only employee who could not access PPE through the vending machine. I accept that Mr. Zhou’s swipe card was unreliable, and that he accessed the vending machine on some instance by borrowing another employee’s card. However, I am unable to infer from this that all other employees were consistently able to access PPE from the vending machine with their own swipe cards. This is especially so when considering all the evidence including the testimonies of Heidelberg’s witnesses who contradict Mr. Zhou’s assertion and the undisputed fact that Heidelberg had a workaround so that employees could obtain PPE without using the vending machine.
[44] As such, I find Mr. Zhou has not established that he was treated differently in his ability to access the vending machine because of his race. Therefore, there is no basis to say Heidelberg treated him differently based on his race by not providing him with a reliable swipe card.
F. Performance Review
[45] Mr. Zhou alleges he was given an interim performance review, and no other employee was subject to such a review. He argues that there is no requirement for an interim review in either the collective agreement or his job offer. He argues that it is inconceivable that an institutional respondent like Heidelberg would not have a consistent practice for reviewing its employees’ performance and therefore I should infer his race was a factor in Heidelberg reviewing his performance before the conclusion of his probationary period.
[46] I am not satisfied Mr. Zhou’s race was a factor in Heidelberg giving him a performance review.
[47] Mr. Zhou testified that he asked a number of coworkers if they had received performance reviews during their probationary period and was told they had not. However, the HR staff person testified that she instituted the interim review process in April 2018 and the requirement for reviews was not retroactive.
[48] Heidelberg submitted employment records showing that of the five coworkers Mr. Zhou says he spoke with, four were hired before April 2018 when the interim review process was implemented and therefore the evidence that they were not subject to interim reviews does not support Mr. Zhou’s argument that he was singled out because of his race. The documentary evidence also shows the one coworker who was hired after April 2018, was given an interim performance review.
[49] Mr. Zhou argues Heidelberg’s evidence is not credible because the documentary materials show the interim reviews were performed in a haphazard manner. He says it is not credible that a company would not have a consistent practice for reviewing its employees. He asks the Tribunal to infer that his race was a factor in his being given an interim review because Heidelberg’s evidence that employees hired after April 2018 were given interim performance reviews is not believable. I do not agree.
[50] I agree the documentary evidence suggests Heidelberg’s record keeping was not perfect when it came to interim performance reviews. Not all documents are signed by the participants or the reviewers and some documents are undated. Further the senior supervisor and manager both testified that there are instances when they neglected to provide a copy of the review to the employee or file it with HR in a timely manner.
[51] However, I am not persuaded these deficiencies in Heidelberg’s records renders Heidelberg’s evidence that they instituted a policy in April 2018 to give interim performance reviews unreliable. I am not persuaded that the size of Heidelberg as a company makes it more unlikely that they would make errors or have inconsistencies in its review process. In light of the documentary evidence which shows Mr. Zhou and the other employee hired after April 2018 were given interim performance reviews, I am not persuaded that Mr. Zhou being given a performance review is a basis to find that his performance was scrutinized more harshly than other employees because of his race, or at all.
[52] As such, I find Mr. Zhou’s race was not a factor in his being given an interim performance review.
G. Criticism of Work
[53] Having considered the fact that Heidelberg reviewed Mr. Zhou’s performance before his probationary period was complete, I next turn to Heidelberg’s assessment of Mr. Zhou’s work. Heidelberg’s observations about Mr. Zhou’s performance are recorded in the performance review and the supervisor’s notes. Mr. Zhou disagrees with the assessment of his work. He says Heidelberg unfairly criticized his work which ultimately culminated in his termination. Mr. Zhou argues that there were no issues with his performance and it is more likely than not that he was performing well. He says he was not presented with the performance review document or the supervisor’s notes during his employment to address the criticism about his work. He says any criticism of his work must be understood in the context of inadequate equipment and getting used to a new job. He argues that because there were no issues with his performance, I should infer that his race was a factor in Heidelberg’s negative assessment of his work. Effectively Mr. Zhou argues that Heidelberg’s evidence about the quality of Mr. Zhou’s work is not credible and therefore the Tribunal should draw an inference of discrimination.
[54] Heidelberg’s explanation for the termination of Mr. Zhou’s employment rests on the purported deficiencies in Mr. Zhou’s work. Therefore, I consider the evidence about Mr. Zhou’s work and Heidelberg’s specific concerns below.
1. The Hole Patching Incident
[55] Mr. Zhou testified that during his performance review he was told his welding work was slow. Mr. Zhou understood this criticism to refer to a specific incident when he was patching a hole in a silo. Mr. Zhou says the patching was slow because he was unable to find a large piece of metal to cover the hole and consequently had to use several smaller pieces which he welded together. Mr. Zhou testified that he was advised to do so by the senior millwright after the two were unable to locate a larger piece of metal. Mr. Zhou acknowledges that it would have been faster and more efficient to use one large piece to patch the hole than several smaller pieces. He disputes responsibility and says he had no choice because there were no larger pieces at the plant. Mr. Zhou argues that because Heidelberg did not bring their dissatisfaction with his performance up before his performance review, this criticism must be without merit.
[56] Heidelberg says Mr. Zhou’s method of welding several small pieces together was inefficient. Mr. Zhou acknowledged in cross-examination that it would have been faster to use a larger single piece of metal to cover the hole. The senior millwright denies Mr. Zhou’s version of events. He says he did not look for larger pieces of metal with Mr. Zhou, nor did he advise him to weld several smaller pieces together. He did not recall Mr. Zhou asking him for help to locate a larger piece of metal. He testified that there are always large materials available at the plant for patching holes. The senior millwright’s testimony was corroborated by the senior supervisor who testified that the plant is always fully stocked with large sheets of metal.
[57] I am satisfied on the evidence before me that Mr. Zhou patching a hole using several small pieces was an issue for Heidelberg because it was inefficient. It is undisputed that it took longer to complete this task by using several smaller pieces than it would have if Mr. Zhou used a single large piece of metal. Mr. Zhou’s assertion that there were no large pieces to patch the hole is contradicted by the testimony of the senior millwright and supervisor. Mr. Zhou further asserts that the senior millwright helped him search for larger pieces to patch the hole, was unable to find anything, and then advised Mr. Zhou to use several smaller pieces together. The senior millwright denies such a sequence of events and says that the standard way to patch a hole is by bending one larger piece over the hole. I find Heidelberg’s evidence on this point more persuasive as the testimony of its witnesses is consistent both internally and with one another.
[58] Further, Ms. Zhou’s assertion that his supervisors did not tell him they had issues with his work is contradicted in the documentary materials and Mr. Zhou’s own testimony. The performance review states that Mr. Zhou’s work was slow. Mr. Zhou’s assertion that he was not made aware of Heidelberg’s dissatisfaction with the quality of his work is contradicted by his own testimony that he was told his welding work was slow and was given an opportunity during the performance review to explain why patching of the hole was time consuming. I am satisfied Heidelberg had issues with Mr. Zhou’s performance when he patched the hole in the silo.
2. The Conveyor Belt Incident
[59] The supervisor’s notes state that on October 19, 2019, Mr. Zhou was believed to have been throwing debris from a tower. Mr. Zhou says Heidelberg baselessly accused him of breaching safety protocols by throwing rubber belt shavings from the top of the tower when he did not do so. He says the only reasonable explanation that he would be accused of such an act, which he did not do, is because of his race.
[60] Heidelberg says an employee reported Mr. Zhou had breached safety protocols by throwing conveyor belt shavings from the top of the tower. They say the supervisor recorded that someone had made such an accusation. They say in any event, there was insufficient evidence to conclude Mr. Zhou had thrown belt shavings breaching safety protocols and they did not reprimand or penalize Mr. Zhou.
[61] I note that for the purposes of my decision it is not necessary that I make a finding of fact about what occurred with regards to the belt shavings. My task here is merely to determine if there was a reasonable basis for Heidelberg to believe Mr. Zhou had breached safety protocols. For the reasons that follow I find there was.
[62] It is undisputed that Mr. Zhou was assigned the task of repairing a conveyor belt at the top of a tower by his supervisor. Mr. Zhou worked together with a mechanic. The issue was that the conveyor belt was untracked producing substantial belt shavings. Mr. Zhou testified that he did not see any belt shavings, was not asked to clean the belt shavings, and did not throw any shavings out of the tower onto the ground below. He says instead that he simply repaired the conveyor belt and restored its power.
[63] Heidelberg’s evidence is that the supervisor heard a report that Mr. Zhou was throwing debris from the top of the tower. The supervisor testified that he did not witness Mr. Zhou throwing debris, did not investigate the allegation, and did not penalize or reprimand Mr. Zhou.
[64] The mechanic testified that he and Mr. Zhou together threw about a gallon of belt shavings out of the tower. He said he did not disclose that he participated in throwing the shavings but told others that Mr. Zhou had. This evidence is consistent with the recollection of the senior supervisor who testified that the mechanic told him Mr. Zhou threw belt shavings out of the tower.
[65] Based on the evidence I find that Heidelberg had a legitimate non-discriminatory reason to suspect Mr. Zhou threw belt shavings out of the tower-because the mechanic reported that Mr. Zhou had. Insofar as Mr. Zhou is alleging that he was treated differently than the mechanic because he was accused by Heidelberg of throwing belt shavings and the mechanic was not, the evidence is that Mr. Zhou was reported to have thrown shavings while no similar report was made about the mechanic.
[66] I accept Heidelberg’s position that there was insufficient evidence to conclusively determine if Mr. Zhou had thrown the belt shavings and no further investigation or action was taken. The incident was noted in the supervisor’s notes stating, “no one actually witnessed [Mr. Zou] doing it.”
3. The Tire Conveyor Pulley Incident
[67] On or around October 23, 2019, Mr. Zhou was tasked with taking worn out tire conveyor pulleys to the junk bin. Each pulley weighed over 20kg and Mr. Zhou said the ordinary process would be to move them by forklift. Mr. Zhou testified that because he does not have a license to operate a forklift and he believed it would be time consuming to find someone who could drive, he chose to push the pulleys down the road for the approximately 100 meters to the junk bin. Mr. Zhou says this method was not overly time consuming and he was not reprimanded or advised not to work this way. He argues that Heidelberg saying he was inefficient is incorrect. Mr. Zhou argues that it was not inefficient to push the pulleys because it only took him about four minutes. He argues that the supervisor and senior supervisor estimating it took Mr. Zhou longer, and the supervisor’s notes incorrectly stating Mr. Zhou was taking the pulleys to the shop, is evidence that Heidelberg was fabricating issues with his performance.
[68] Heidelberg says this incident was another example of Mr. Zhou’s inefficiency and lack of common sense when performing assigned tasks. The senior supervisor’s testimony directly contradicts Mr. Zhou’s assertion that no one spoke to him about pushing the pulleys by hand. He testified that he spoke to Mr. Zhou that same day telling him to ask for help or get someone with a forklift to assist. I find I prefer Heidelberg’s evidence on this point because the senior supervisor’s testimony that he instructed Mr. Zhou to ask for help next time is consistent with Mr. Zhou’s evidence that later that afternoon when tasked with moving more pulleys he called a colleague to ask for help. I am not persuaded that an error in the supervisor’s notes stating the destination of the pulleys or the time estimates being longer is sufficient to render the evidence Heidelberg had genuine dissatisfaction with Mr. Zhou’s performance not believable. The whole of the evidence supports Heidelberg’s position that they had issues with the manner in which Mr. Zhou moved the pulleys and they made note of it as well as speaking with Mr. Zhou about the issue. I am satisfied that Heidelberg’s dissatisfaction with how Mr. Zhou moved the pulleys was genuine.
4. The Blow Torch Incident
[69] Mr. Zhou was tasked with using a blowtorch to cut steel. Mr. Zhou says the blowtorch he was provided was not working properly. He says he waited for a colleague to finish his work, then borrowed the colleague’s equipment. He says he did not replace his blowtorch because he did not want to bother his colleague by asking where to find a replacement and believed it would take longer to search for a replacement. Mr. Zhou says the work was done and no one spoke to him about his efficiency.
[70] Heidelberg says the supervisor observed that Mr. Zhou was having difficulty performing this task. He said this was another example of Mr. Zhou’s lack of proficiency. The supervisor testified that he spoke with Mr. Zhou who blamed the difficulty on the blowtorch he was provided. The supervisor say he advised Mr. Zhou to clean or change the tip of the blowtorch if there were issues with the equipment. Mr. Zhou denies the supervisor spoke with him about the blowtorch.
[71] Here I find the supervisor’s evidence to be more believable. The supervisor recalled in detail the interaction with Mr. Zhou. He said the interaction was memorable because he had previously told Mr. Zhou that his work speed and efficiency was a concern, and he felt frustrated by Mr. Zhou’s inefficient work. I find the supervisor had genuine concerns about Mr. Zhou’s efficiency and proficiency performing his job based on his difficulty using a blowtorch and not replacing it promptly when the equipment was not working.
5. Dust Collection
[72] Dust collectors located around the plant collect dust and debris in fabric dust bags that must be periodically replaced. Mr. Zhou’s performance notes state that he did not like dusty locations and other millwrights had to assist him for tasks involving dust. Mr. Zhou denies he required assistance and says there were no issues with how he performed this task.
[73] I find Mr. Zhou’s performance of this task was an issue for Heidelberg. The supervisor and senior supervisor testified they each observed Mr. Zhou standing to the side and not helping colleagues when there were tasks involving dust. I find the testimonies of the witnesses, which are consistent internally, with one another, and with the documentary evidence persuasive. The senior supervisor said he spoke with Mr. Zhou about his behavior and advised him to help his colleagues perform these tasks. I accept that Heidelberg had legitimate concerns about Mr. Zhou’s performance of these tasks and communicated these concerns to Mr. Zhou.
[74] Mr. Zhou argues that Heidelberg’s evidence that they had issues with his performance is not credible because he was consistently offered overtime hours. He says the collective agreement provides that overtime hours are given to employees “who are capable of performing the work.” Therefore, he argues that the performance issues are false and he was capable of performing the work of a millwright. However, both the supervisor and senior supervisor testified that during the relevant time Heidelberg was undertaking a clean-up project of the plant and offered overtime to all the millwrights.
H. Termination of Employment
[75] Finally, I deal with the allegation that Mr. Zhou was fired because of his race. Mr. Zhou argues that the reason Heidelberg gave for his termination – poor work performance – is not credible because there are no issues with his work. He disagrees with Heidelberg that there were issues with his work performance and says Heidelberg’s explanation is not credible. He says Heidelberg’s evidence is not believable because witnesses gave inconsistent reasons for the termination, including who was the ultimate decision maker. He asks the Tribunal to draw an inference that his race was a factor in his termination because, he says, the explanation given by Heidelberg for his termination does not stand up to scrutiny.
[76] The legal question I must decide is whether an inference of racial discrimination is more probable on a balance of probabilities than Heidelberg’s non-discriminatory explanation. I find that it is not. I am not satisfied that Mr. Zhou’s race was a factor in his termination for the following reasons.
[77] First, for the reasons delineated above, I have found that Heidelberg had genuine concerns about Mr. Zhou’s work performance. Heidelberg says Mr. Zhou was not performing his duties with the proficiency, efficiency, and quality it required of a Red Seal certified millwright. The supervisor testified that he saw no value in retaining Mr. Zhou because of the quality of his work. The senior supervisor said that Mr. Zhou was slow, not efficient, and his work was of poor quality.
[78] Mr. Zhou disagrees with the criticism about his work and relies on his assertion that any criticism is false or exaggerated to support his discrimination case. I have found above that the evidence supports Heidelberg’s position that they had issues with Mr. Zhou’s work including his speed, his efficiency, his knowledge, and safety. Mr. Zhou says he was not informed about issues with his performance. However, I have found that Heidelberg communicated to him their dissatisfaction, in the performance review of October 10, 2019, on October 23, 2019, when he was observed moving pulleys by hand, when he was observed having difficulties using a blowtorch, and when he was observed not assisting coworkers in performing dusty work.
[79] Second, I do not find the inconsistencies in Heidelberg’s witnesses renders their evidence wholly unbelievable. This is an employment that lasted a little over a month approximately five years before the hearing. The termination meeting on October 29, 2019, was brief lasting less than an hour. I find it reasonable that memories of the witnesses would fade over time. I do not find the witnesses being unable to recall with precision who attended the termination meeting or the timing of conversations they say they had with Mr. Zhou about his performance undermines their credibility. I find the evidence of the supervisor, senior supervisor and manager consistent on the central issue that there were issues with Mr. Zhou’s work performance which resulted in his termination.
[80] Mr. Zhou argues that Heidelberg’s witnesses each provided different explanations for his termination. He says this inconsistency is fatal to their credibility. I find the evidence of Heidelberg’s witnesses is consistent that no one incident was the reason for the termination. The supervisor and senior supervisor said there was no one incident while the manager recalled that the conveyor belt debris incident was a factor in the decision. I appreciate that each of the witnesses recalled different incidents being factors in the decision to terminate the employment. Because Heidelberg’s evidence is that no one incident was determinative and it was Mr. Zhou’s overall work performance that was the reason for his termination, I find the witnesses’ recollection focusing on different events does not negatively impact their credibility on the issue of whether there were performance issues that resulted in their decision to terminate Mr. Zhou.
[81] Further, while Mr. Zhou argues that there are inconsistencies in the witnesses’ testimony about who had the authority to terminate Mr. Zhou, I find the evidence shows the manager signs off on the decision to terminate based on the recommendations of the supervisor and senior supervisor. The supervisor testified the manager “left that up to me” which I find consistent with the manager’s testimony that he placed a high level of trust in his supervisors. I do not find the inconsistencies in the evidence of Heidelberg’s witnesses to be on the material issues such that the evidence is unreliable or unbelievable.
[82] Third, I do not find any deficiencies in Heidelberg’s performance management system undermines the credibility of their explanation that Mr. Zhou was terminated for performance reasons. Mr. Zhou argues that it is inconceivable that a company the size of Heidelberg would not have a rigid system for evaluating employees, including standardized record keeping. He says the manner in which Heidelberg evaluated his performance and documented their concerns undermines their explanation that there were performance issues. I do not agree.
[83] I appreciate Heidelberg’s records appear to be haphazardly kept. Documents are not always signed or dated. The supervisor and senior supervisor testified that there were times they had concerns with Mr. Zhou’s performance but did not speak to him or record their concerns in performance notes. The HR staff person testified she had implemented procedures for performance reviews, but it was the responsibility of the supervisors to follow the processes. I give Heidelberg’s evidence on this point weight. The witnesses conceded flaws in how they managed employees including Mr. Zhou to their detriment.
[84] I find any gaps in Heidelberg’s performance management records to be more plausibly explained by a busy workplace that had haphazard record keeping. The undisputed evidence of Heidelberg is that this was period when they were undertaking large projects and offering overtime to its employees. Despite some deficiencies the evidence shows the supervisor and senior supervisor kept notes about Mr. Zhou’s performance issues and conducted an interim performance review. Mr. Zhou says his performance review and the supervisor’s notes were not shown to him during his employment and are an attempt by Heidelberg to retroactively justify his discriminatory firing. I am not persuaded by this suggestion as it is not unusual for a supervisor to make notes about their employees for themselves which are not shared with the employee. The supervisor also testified that they prepared the performance review document at the time they performed Mr. Zhou’s interim review. Mr. Zhou has provided no evidence, other than his assertion that he did not see these documents during his employment, to support his suggestion that they were created after his firing.
[85] Finally, I consider Mr. Zhou’s allegations of racial discrimination cumulatively. At its highest I understand Mr. Zhou to argue that despite there being no issues with his work, he was scrutinized, criticized, and treated differently culminating in his termination. He says the only rational explanation for this treatment is his race.
[86] I have already found Heidelberg has established, on a balance of probabilities, that they had genuine concerns about Mr. Zhou’s work performance. Mr. Zhou has provided no factual basis to support his allegation other than his denial that there were any performance issues. In light of my finding that Heidelberg had genuine issues with Mr. Zhou’s work, I find Mr. Zhou’s assertion that his race must have been a factor in his firing is not enough. There is nothing before me to sustain a racial inference. There are no comparators against which I can measure Mr. Zhou’s allegation that he was treated differently.
[87] I am not satisfied on a balance of probabilities that Mr. Zhou’s race was a factor in his firing. Heidelberg has provided a non-discriminatory explanation for the firing supported in the documentary evidence and testimony of its witnesses-Mr. Zhou’s performance-which I find was the sole factor.
[88] For the above reasons, I am not persuaded on the materials that Mr. Zhou’s race was a factor in the termination.
IV CONCLUSION
[89] Based on the evidence, I find that Heidelberg did not violate the Code. Accordingly, the complaint is dismissed in its entirety under s. 37(1) of the Code.
Edward Takayanagi
Tribunal Member