An arbitrator has ruled that a Casino Regina employee who was fired for harassing his colleagues with comments considered offensive and’ arguably racist’ would not get his job back at the casino owned and operated by the Crown corporation.
The man, who had worked as a dealer and an acting supervisor at the SaskGaming casino for over 10 years, was fired in 2018 after two separate allegations of harassment, both involving allegations of racist comments or behavior.
The man was upset by his firing and requested to be reinstated.
Canada’s Public Service Alliance, the union representing the man, argued that he expressed remorse and was prepared to take corrective action to remedy the situation.
But Allen Ponak, the case’s arbitrator, found in a decision delivered late last month that the incidents when considered with the employment file of the man, demonstrated a harassment pattern that justified his firing, and dismissed his grievance.
Following a January arbitration hearing, Ponak delivered his decision, initially scheduled for March 2020, but postponed due to the COVID-19 pandemic.
He heard testimony from a casino employee, who is an Indigenous woman, who testified that the dealer told her to watch John Wayne Western films in August 2018, which portray harmful stereotypes and tropes of Indigenous people.
When she told the man she didn’t like John Wayne movies because of the racist depictions of Indigenous people, the arbitrator said he “doubled down” and told her to “get over it.”
Ponak’s decision said that she testified that the dealer “leaned into her table with a smirk and said … that ‘your country was colonized 300 years ago, are you still going to persecute everyone?'”
The decision claimed that the pair disagreed about the validity of the experience of the woman as an Indigenous woman, and the man “made it very clear that he believes Aboriginal issues are a waste of time.”
The event, the woman testified, left her “shaky,” and she decided to file a formal complaint after discussing it with her husband after her shift.
The casino’s acting human resources director testified that after the complaint was filed, interviews with both parties, and those working that night, were conducted.
The acting director testified that the dealer characterized his discussion with the woman in his interview with the man as a “difference of opinion” akin to the Crusades that had taken place many generations ago and [said] that the focus should be on the future,” the decision says.
The acting director testified that the man downplayed the federal investigation into Indigenous women who were missing and murdered, but declined to say that indigenous problems were a waste of time.
The man acknowledged his statements were offensive, inappropriate, and “totally unacceptable,” during his testimony at the arbitration hearing, and said he didn’t know why he made the remarks in the first place.
He said he hoped to engage in mediation, but after being reprimanded by his managers, he failed to offer a formal apology to the woman, because he was in shock. After being advised by his managers to stay away from the woman, he also said he didn’t know where to turn to organize a mediation.
The arbitrator found that the comments of the man to the woman were “arguably racist” and “extremely insensitive.” even giving the man the benefit of the doubt.
The decision said that “I find it difficult to understand how the [man] could be so oblivious to the impact of his words on an Indigenous woman in this day and age. For the [man], a white middle-aged man, not to understand the impact his words might be having on [the woman] and to imply equivalency because ‘racism goes both ways’ is difficult to fathom.”
The second allegation involved what the decision identifies as “alleged rude and possibly racist behavior towards a server of Asian origin.”
The man was reprimanded for shouting at the server about one month after making the comments to the woman.
The man testified that he was dealing cards when a server asked players for food and drink orders at his table.
The server testified that he approached a group of tables set close together, and he needed to talk loudly when asking players for their orders because the casino was noisy. A player at the man’s table replied, asking for a drink from him.
The server testified that the dealer placed his hand up to motion the server to avoid play from being interrupted. The server responded that he had not addressed the man’s table.
Then the dealer reportedly shut off the server, shouted at him, and made him feel embarrassed.
Another dealer voluntarily testified that the outburst caught the attention of other patrons, who expressed their discomfort.
The written testimony of one longtime player categorized the outburst as unlike any he had seen at Casino Regina in his 12 years of playing.
The dealer said in his testimony that he “directly stated” that the server could not interrupt a hand while it was in play. The man testified that he was called rude as the server pressed the point. He told the server, the dealer said, to talk to his manager.
A formal complaint was filed by the server, in which he said “racism is bad,” which the casino also investigated.
The casino’s acting director of human resources testified that the dealer denied yelling during an interview and was “quite dismissive of the complaint,” and assumed that players were uncomfortable due to the interruption of their game by the server rather than the incident itself.
The man admitted his response was “over the top” in cross-examination at the hearing, but denied shouting at the server. He also denied that the ethnicity of the server played any part in the incident.
The arbitrator said the server incident was also serious and categorized the behavior of the dealers as a “tirade” against the server, who was just trying to do his job.
The arbitrator wrote that “No employee should be treated the way that the [dealer] treated [the server].”
Although Ponak’s decision claimed that the dealer’s actions “constitute serious misconduct,” in some of the words used by the dealer, he said there was no evidence of racism.
The decision also claimed that none of the customer witnesses submitted evidence indicated that the action of the dealer was linked to the fact that the server was of Asian descent.
The arbitrator wrote at the hearing that the man seemed to be apologetic and understood the impact his actions had on the server.
The arbitrator acknowledged that the man said that he was willing to do whatever training was required to secure and maintain his casino job, which he testified that he “really enjoyed” and was “really good at it.”
The arbitrator wrote that if it were the first offense, in rare cases, harassment may be grounds for dismissal.
But, the arbitrator said, the incidents that caused the complaints would not have been his first offense.
The arbitrator noted that at a staff charity poker tournament, the dealer was previously suspended for one day by the casino for drinking “multiple alcoholic beverages” and then arguing over whether he should report for work.
He also had a letter of expectations in his file, released in 2017 after “a verbal altercation on the gaming floor with another staff member in which derogatory comments and expletives were exchanged within earshot of customers,” the decision says.
In addition, the dealer had received a written reprimand in March 2018 for a comment made to customers at his table during a routine handoff of the table to another dealer.
The arbitrator’s decision says that “The other dealer was not a native English speaker and the [man] told the customers, ‘hopefully you can understand him.'”
The man said at the arbitration hearing that he had not addressed that comment to his colleague and said that it was meant for the players, who he said were unfamiliar with the game, had been drinking, and at the wrong time had been placing bets.
Ponak wrote, saying the man was dismissed for just cause that “All three previous incidents demonstrate that the [man] has a hard time controlling his emotions and his comments. The incidents with [the Indigenous woman] and [the server] are similar.”
The decision says that “Casino Regina is in a customer-focused business. It has a diverse workforce and a diverse clientele. The evidence leaves me with little confidence that the [man’s] misconduct would not be repeated if he was reinstated.”
