Vo v. Windsor Casino, 2010 HRTO 1674

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ty Kim Vo

Applicant

-and-

Windsor Casino Limited and Joe Moore

Respondents

DECISION

Adjudicator: Mark Handelman

Date: August 12, 2010

Citation: 2010 HRTO 1674

Indexed as: Vo v. Windsor Casino

APPEARANCES BY

Ty Kim Vo, Applicant ) On his own behalf

Windsor Casino Limited and ) Marilee A. Marcotte, Joe Moore, Respondents ) Counsel

Introduction

1This is an Application filed May 28, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on February 26, 2006 and abandoned upon filing this Application with the Tribunal.

2This hearing was conducted on June 22, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than a year old by the time they reach the Tribunal.

3At the hearing, the applicant gave evidence and tendered a variety of documents as exhibits. Though he had not previously provided copies of these documents to the respondents, their admission was not prejudicial and they were entered as exhibits. The documents related more to the applicant’s quality as an employee with different companies both before and after his employment with the corporate respondent.

4The applicant also called a witness, Ms. Helen Yaremcio, a former employee of the corporate respondent and the applicant’s co-worker.

5The respondents’ previously filed document brief was made an exhibit. The respondents called Ms. D. Francia, the corporate respondent’s labour relations manager as a witness.

Background

6In 1994 the applicant began work at the Windsor Casino as a bartender, a position he held until June 3, 2005, when his employment was terminated. The respondents’ position is that the applicant’s termination was for cause. The applicant alleged in this Application that his termination was discriminatory because it was based upon his ethnic origin and race. The applicant self-identifies as Asian and is from Viet Nam.

7The incidents giving rise to the applicant’s termination constituted his second significant conflict with his employer. The first occurred in the autumn of 2004, when the corporate respondent suspended the applicant from his employment for three days. The suspension was for threatening a supervisor, the individual respondent in this matter, over a change in the applicant’s work schedule. The threat was made through staff of an employee help line to whom the applicant spoke by telephone. The staff person was sufficiently concerned that she reported the threat to Windsor Police, who investigated the incident.

8The applicant’s union grieved the suspension on his behalf and it was settled by changing the suspension to one day. Since the applicant had already served his three day suspension, his employment record was amended to reflect a one day suspension and the corporate respondent paid him for one day’s wages.

9Another aspect of the applicant’s reinstatement in 2004 was the signing on November 12, 2004 of a “Memorandum of Settlement” by the corporate respondent, the union and the applicant. One of the recitals in that memorandum described it as a “last chance” agreement. The applicant’s employment became conditional for 12 months. Paragraph 3 of the memorandum read:

During this conditional period, should the employee violate any policy or procedure, including the Attendance at Work policy, which results in a level of discipline of a suspension or higher, his employment will be immediately terminated.

10The respondents produced a compact disc to which had been transferred extracts from routine surveillance tapes made of the applicant in the workplace. One collection of extracts shows the applicant with a leather bill folder of the sort used in restaurants to present customers’ cheques to them. The applicant wrapped the bill folder in paper towels and left the premises with it. Another shows him eating a bread roll—employees were not allowed to eat Casino food. Another extract shows the applicant eating maraschino cherries and bread while on duty. Another shows him buttering a bread roll, dipping it into a drink he poured himself and eating it. Another shows him taking a handful of disposable rubber gloves and putting them in his pocket and another shows him making and drinking a non-alcoholic beverage.

11All of the incidents described in the preceding paragraph were, according to the corporate respondent, grounds for at least a suspension. Therefore, the respondents alleged, they were entitled to terminate the applicant’s employment on the authority of the Memorandum of Settlement.

12In her evidence on behalf of the applicant, Ms. Yaremcio testified that she had once been suspended by the corporate respondent after getting caught eating on the job. She thought the applicant’s termination was an excessive response to what he’d done, but she was unaware of the Memorandum he had signed.

13On the applicant’s behalf, his union grieved his termination but subsequently determined they could not win an arbitration. Union representatives negotiated a settlement on the applicant’s behalf, which they were entitled to do in accordance with the collective agreement, even though the applicant refused to sign the settlement and never cashed the cheque the corporate respondent sent him as part of the settlement.

Analysis

14As noted, the applicant alleges his termination was based upon his ethnic origin and race while the corporate respondent alleges it was for cause.

15There was no evidence at all as to how or whether the individual respondent was involved in the decision to terminate the applicant.

16In evidence at the hearing, the applicant established that he was an employee of the corporate respondent and that they did terminate his employment. He also established that he was Asian and from Viet Nam. These facts were not in dispute.

17What the applicant could not establish was that the termination of his employment was based upon his ethnicity or place of origin. The corporate respondent clearly established that the applicant’s termination was for cause.

18The applicant was a conditional employee at the time his employment was terminated. There was an agreement between him, his union and his employer that if he breached any of the employer’s policies in a fashion that could result in suspension, his employment would be terminated. He was caught on video tape a number of times breaching those policies. His employment was terminated for that reason.

19I am aware that discrimination can be insidious rather than overt. I examined all the evidence carefully to see if there was anything at all supporting the applicant’s allegations. There was not.

Order

20The respondents have proven a non-discriminatory reason for the termination of his employment. The Application is dismissed.