A Casino Regina employee who was fired for harassing his colleagues with comments deemed insensitive and “arguably racist” will not get his job back at the Crown corporation owned and operated casino, an arbitrator has ruled.
The man, who had worked at the SaskGaming casino for over 10 years as a dealer and an acting supervisor, was fired in 2018 after two different harassment allegations, both involving allegations of racist comments or behaviour.
The man grieved his firing, and asked to be reinstated.
The Public Service Alliance of Canada — the union representing the man — argued he displayed remorse and was willing to take corrective actions to remedy the situations.
But in a decision delivered late last month, Allen Ponak, the case’s arbitrator, found that the incidents, when considered with the man’s employment file, showed a pattern of harassment that justified his firing, and dismissed his grievance.
Ponak delivered his decision following a January arbitration hearing — originally scheduled for March 2020, but delayed due to the COVID-19 pandemic.
He heard testimony from a casino employee, who is an Indigenous woman, who testified that in August of 2018, the dealer told her to watch John Wayne Western movies, 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.”
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?'” Ponak’s decision said.
The woman testified she was offended by the comment and told the man racism was still present in Canada, to which he allegedly responded racism “goes both ways.”
‘Oblivious’ to impact of words: arbitrator
The decision said the pair argued about the validity of the woman’s experience 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 after discussing it with her husband after her shift, she decided to file a formal complaint.
The casino’s acting director for human resources testified that interviews with both parties, and others working that night, were conducted after the complaint was filed.
The acting director testified that in his interview with the man, the dealer characterized his discussion with the woman as a “‘difference of opinion’ akin to the Crusades that had occurred many generations ago and [said] that the focus should be on the future,” the decision says.
The acting director testified the man downplayed the federal inquiry into missing and murdered Indigenous women, but denied saying Indigenous issues were a waste of time.
For the [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.– Arbitrator Allen Ponak
During his testimony at the arbitration hearing, the man acknowledged his comments were insensitive, inappropriate and “totally unacceptable,” and said he didn’t know why he made the remarks in the first place.
He said he hoped to engage in mediation but failed to offer a formal apology to the woman after being reprimanded by his managers, because he was in shock. He also said he didn’t know where to turn to organize mediation, after being told by his managers to stay away from the woman.
The arbitrator found that the man’s comments to the woman were “arguably racist” and, even allowing the man the benefit of the doubt, “extremely insensitive.”
“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,” the decision said.
“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.”
Public ‘tirade’ against server
The second complaint involved what the decision describes as “alleged rude and possibly racist behaviour towards a server of Asian origin.”
About one month after making the comments to the woman, the man was reprimanded for shouting at the server.
The man testified he was dealing cards when a server asked players at his table for food and drink orders.
The server testified he approached a group of tables placed close together, and because the casino was noisy, he needed to speak loudly when asking players for their orders. A player at the man’s table responded, asking him for a drink.
The server testified the dealer put his hand up to motion the server to stop interrupting play. The server responded he was not addressing the man’s table.
The dealer then allegedly cut the server off, shouted at him and made him feel embarrassed.
The outburst caught the attention of other patrons, who expressed their discomfort, another dealer voluntarily testified.
One longtime player’s written testimony categorized the outburst as unlike any he had seen in his 12 years of playing at Casino Regina.
In his testimony, the dealer said he “directly stated” that the server was not to interrupt a hand while it was in play. When the server pressed the point, the man testified he was called rude. He told the server to speak to his manager, the dealer said.
The server filed a formal complaint, in which he said “racism is bad,” which was also investigated by the casino.
The casino’s acting human resources director testified that during an interview, the dealer denied yelling and was “quite dismissive of the complaint,” and assumed players were uncomfortable because of the server’s interruption of their game rather than the incident itself.
In cross-examination at the hearing, the man admitted his response was “over the top” but denied yelling at the server. He also denied that the server’s ethnicity played any role in the incident.
The arbitrator said the incident involving the server was also serious and categorized the dealers’ actions as a “tirade” against the server, who was only trying to do his job.
“No employee should be treated the way that the [dealer] treated [the server],” the arbitrator wrote.
While Ponak’s decision said the dealer’s behaviour “constitutes serious misconduct,” however, he said there was no evidence of racism in any of the words used by the dealer.
The decision also said none of the customer witnesses who submitted testimony suggested the dealer’s conduct was related to the fact the server was of Asian descent.
At the hearing, the arbitrator wrote the man appeared to be apologetic and understood the impact his behaviour had on the server.
The arbitrator noted the man said he was willing to do whatever training was necessary in order to secure and maintain his job at the casino, which he testified he “really enjoyed” and was “really good at it.”
The arbitrator wrote that in rare cases, harassment could be grounds for dismissal if it were a first offence.
But the incidents that prompted the complaints wouldn’t have constituted his first offence, the arbitrator said.
The arbitrator noted the dealer was previously suspended by the casino for one day — for consuming “multiple alcoholic beverages” at a staff charity poker tournament, and then arguing about whether he should report for work.
He also had a letter of expectations in his file, issued 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 other dealer was not a native English speaker and the [man] told the customers, ‘hopefully you can understand him,'” the arbitrator’s decision says.
At the arbitration hearing, the man said that he had not directed that comment at his colleague, and said it was intended for the players, who he said were inexperienced with the game, had been drinking, and had been placing bets at the wrong time.
“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,” Ponak wrote, saying the man was dismissed for just cause.
“Casino Regina is in a customer focused business. It has a diverse workforce and diverse clientele,” the decision says.
“The evidence leaves me with little confidence that the [man’s] misconduct would not be repeated if he was reinstated.”