The British Columbia Human Rights Tribunal has determined that an older worker’s termination of employment was due to issues with his performance and behaviour, not his age.
Yaletown Mini Storage (YMS) operates a car wash in Vancouver and hired Jaffar Jaffar, 59, in November 2012 to be a car wash attendant.
Over time, YMS found there were issues with Jaffar’s work performance and attitude and by August 2016, the company opted to give him a disciplinary letter. The letter, from the vice-president of YMS, outlined problems with Jaffar’s use of more vacation time than he was allowed, poor interaction with customers — referring to customer comments that he was the “grumpy old guy” on the afternoon shift — and not following an acceptable dress code.
Following the disciplinary letter, YMS kept an eye on Jaffar’s conduct. However, the vice-president felt he was “generally argumentative, negative and distrustful” and believed Jaffar was causing a toxic work environment. He also felt Jaffar was trying to turn new employees against YMS. The vice-president spoke with Jaffar on several occasions about the company’s concerns, but Jaffar didn’t improve.
YMS installed new garage doors at the car wash in March 2017 with a planned installation of air cylinders that would allow them to be opened and closed by remote control. In April, a rope was put on the doors to help lower them for cleaning until the cylinders were put in.
Worker erupted after order to clean doors
On April 13, YMS’ vice-president asked an employee to tell Jaffar to clean the doors. If Jaffar didn’t have time, he was to leave a note for another employee to do it. However, the employee told the vice-president Jaffar was “acting crazy” and yelling that it wasn’t his job to clean the doors.
The vice-president discussed the matter with Jaffar, who said the doors couldn’t be closed safely without a rope. Jaffar was reminded a rope had been installed, but Jaffar angrily replied that it wasn’t his job to clean the doors or tell someone else to clean them. The vice-president was shocked at Jaffar’s manner of speaking to him and decided his disrespectful, insubordinate behaviour warranted dismissal.
The vice-president met with Jaffar the next business day, April 17, and terminated his employment. The termination letter cited Jaffar’s “extremely negative behaviour” on April 13 including his unco-operative, defiant, and disrespectful attitude towards the vice-president. When considered with his history of bad attitude, poor performance, and insubordination — including the prior disciplinary letter — YMS determined it had just cause for dismissal.
Jaffar filed a human rights complaint alleging discrimination and that his termination was because of his age. He pointed to the August 2016 disciplinary letter that called him a “grumpy older guy” and said the vice-president didn’t want to listen to safety issues — relating to his concerns cleaning the garage door — raised by an “older guy in the company.” Jaffar also claimed YMS wanted to hire a younger, cheaper employee to replace him — after his termination, YMS placed an ad for a car wash attendant with a starting wage significantly lower than what Jaffar had been paid.
YMS filed an application to dismiss Jaffar’s complaint on the grounds that it could not succeed in a full hearing before the tribunal.
The tribunal found that the vice-president did not call Jaffar a “grumpy older guy” in the disciplinary letter, but instead was referencing comments made by others in relation to Jaffar’s behaviour and service. This was “a credible, non-discriminatory explanation,” said the tribunal.
The tribunal also found that there was no evidence the vice-president called Jaffar an “old man” and even if he did, it may have been inappropriate but didn’t meet the standard of being inherently damaging to Jaffar’s dignity or create a difficult work environment for him. In addition, Jaffar provided no evidence or reliable claims that there were multiple instances of him suffering a disadvantage or negative work environment because of age-related comments or treatment during the normal course of his job.
As for the job ad, the tribunal said it made sense for a new employee to start at a lower wage, regardless of age. A new recruit would have fewer years of service and have less experience than Jaffar, so age had nothing to do with the job posting.
“On its face, the job ad simply states that YMS is looking for a full-time car wash attendant,” the tribunal said. “Accordingly, YMS has advanced a credible, non-discriminatory explanation to rebut any inference of discrimination flowing from the job ad.”
The tribunal agreed with YMS that Jaffar would not be able to prove YMS discriminated against him, as it was more likely his termination of employment was due to poor performance issues and insubordination, not his age. Jaffar’s human rights complaint was dismissed.
For more information see:
• Jaffar v. Yaletown Mini Storage (No. 2), 2019 CarswellBC 485 (B.C. Human Rights Trib.).
© Copyright Canadian HR Reporter, HAB Press. All rights reserved.