Vo v. Complex Services, 2010 HRTO 948

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Long Vo

Applicant

-and-

Complex Services Inc. o/a Fallsview Casino

Respondent

decision

Adjudicator: Kaye Joachim

Date: April 30, 2010

Citation: 2010 HRTO 948

Indexed as: Vo v. Complex Services

APPEARANCES BY

Long Vo, Applicant ) On his own behalf

Complex Services Inc. o/a Fallsview Casino, ) Lauri A. Reesor,

Respondent ) Counsel

1The applicant filed a transitional application on May 22, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing was held on April 13, 2010.

2The applicant self-identifies as a person of Vietnamese descent. He was employed with the respondent Casino as a Table Games Supervisor from November 1996 to October 11, 2006. The applicant alleges that the respondent discriminated against him with respect to employment on the basis of race contrary to sections 5 and 8 of the Code.

3The applicant asserts that he was unfairly disciplined in March 2006 and received a poor performance rating as a result, with consequent wage consequences. Despite taking steps to improve his performance, his employment was terminated in October 2006. The applicant understands that his termination was part of a company restructuring. However, he believes he was chosen for termination due his Asian heritage and difficulty with the English language. He asserts that given his lengthy employment record and good performance reviews, the inference should be made that the reason he was selected for termination was his race.

4The respondent Casino asserts that the discipline in March 2006 was justified based on a breach of internal casino procedures and that this discipline contributed to the unsatisfactory performance review in 2006. They deny that race played any role in the imposition of the discipline. With respect to the termination decision, the respondent asserts that in October 2006, 104 associate positions (any position below senior management) were eliminated due to a company wide restructuring and that the sole criterion for selection for termination was performance. The respondent asserts that that, in accordance with the performance criteria used, the applicant, one of the lowest performing persons in his category of Table Games Supervisors, was selected for termination.

5I heard the evidence of the applicant, Colleen Falco, Director of Human Resources, Shannon Dutton, Director of Table Games, Robert Kipp, former Shift Manager and Jason March, Shift Manager. In accordance with the expectation that transitional Applications should be determined in a fair, just and highly expeditious manner, the parties were asked to adopt their prior statements or will says as their evidence, and apart from some clarifying questions, moved directly to cross examination.

The March 7, 2006 Discipline

6On March 7, 2006, the applicant was given a written warning in respect of an incident which occurred on February 27, 2006. The drop box under one of the dealer tables for which the applicant was responsible had not been put in place and the applicant did not notice this. Thus, the dealer opened the table without the drop box in place. Soon after, the applicant noticed that the drop box was missing and advised his Pit Supervisor. The Pit Supervisor advised the Shift Manager and the situation was resolved.

7However, the opening of a dealer table without a drop box was a serious breach of Alcohol and Gaming Commission of Ontario’s Internal Control Manual. This breach required the respondent to report the incident and report what steps had been taken to avoid future such breaches. Ms. Dutton testified that, in consultation with the Shift Manager, she determined that the Table Games Supervisor and the Pit Supervisor shared responsibility for opening the table without ensuring the drop box was in place.

8The Table Games Supervisor (also known as a Floor Supervisor) is the first level of supervision on the games tables. The Floor Supervisor reports to the Pit Supervisor who in turn reports to the Shift Manager. It is the responsibility of the Table Games Supervisor and the Pit Supervisor to open and close dealer tables.

9Accordingly, Ms. Dutton and Mr. March determined that both the Table Games Supervisor (the applicant) and the Pit Supervisor should be disciplined for this violation of the Internal Control Manual. The applicant received a written warning. The Pit Supervisor, as the more senior person, received a one day suspension.

10The applicant testified that he believed the discipline was unfair. The parties were in agreement that this situation of a drop box not being installed prior to opening a gaming table had never occurred before. Nonetheless, the applicant noticed the missing drop box shortly after the shift opened, thereby saving a potentially more prolonged breach of the Internal Protocol Manual. The applicant was not responsible for the lack of installation of the drop box. He had never considered that he was responsible for checking for the presence of the drop box.

11The applicant’s perception of unfairness is understandable. From the applicant’s perspective, he was not responsible for installing the drop box, but he was blamed for not noticing its absence immediately.

12However, it is not the role of the Tribunal to assess the fairness of an employer’s discipline. The issue before me is whether the applicant’s race played a role in the decision to impose discipline on him. The applicant has not discharged the onus which lies upon him to establish that his race played a role in the decision to impose discipline in this circumstance.

13The evidence was uncontradicted that the Director of Table Games considered the opening of a gaming table without a drop box was a serious infraction and that two supervisors were disciplined as a result. The applicant was one; the Pit Supervisor, who was not a person of colour, was the other. The Pit Supervisor received the more serious discipline. There is no evidence of differential treatment on the basis of race in this scenario. It may be that both the applicant and the Pit Supervisor were unfairly held responsible (although it is not within my authority to make such a determination and I emphasize that that I am not making such a finding). For the purpose of this Decision, I am satisfied that there was insufficient evidence to establish that the applicant’s race played any role in the decision to apportion responsibility for this incident to the applicant and the Pit Supervisor.

The April 2006 performance review

14The applicant’s 2006 performance review was conducted on April 17, 2006. The applicant received an assessment of “meets expectations” in the areas of accountability to business results, accountability to customers, and accountability to the Team. In the area of accountability to Internal Practices and Processes, the applicant received an assessment of “improvement required.”

15The performance assessment, in accordance with standard company procedures, was initially drafted by the Pit Supervisor and then reviewed and revised if required by the Shift Manager. The evidence was uncontradicted that the Pit Supervisor had initially assessed the applicant as “meets expectations” in the area of accountability to Internal Practices and Processes, and that this assessment was reduced to “improvement required” as a result of the March 7, 2006 discipline.

16The applicant did not object to this evaluation at the time. On the contrary he made the following comments at the performance review “I’ll do my best in this year and the coming year to achieve casino expectation.”

17However, after his employment was subsequently terminated, the applicant filed his human rights complaint alleging that the assessment of “improvement required” was unfair, as this assessment was lowered because of the drop box incident. Having found that the applicant has not established that the discipline imposed for the drop box incident was not a form of discrimination on the basis of race, it follows that considering this discipline in the April 2006 performance review was also not a breach of the Code.

18The applicant attempted to argue at the hearing that he disputed the fairness of his employer’s performance review system as it is possible for an employer to manipulate performance review results. That may be true. However, it is not this Tribunal’s mandate to review the general fairness or efficacy of an employer’s performance review system. The mandate of the Tribunal is restricted to determining whether the applicant has established that the respondent has discriminated against this applicant on the basis of race in the performance review process.

19I am satisfied that the applicant has not adduced sufficient evidence to establish that allegation.

Restructuring Resulting in the Applicant’s Termination

20The respondent’s uncontradicted evidence established that the respondent organization underwent a significant restructuring in 2005 resulting in the elimination of 104 associate positions including the applicant’s. An Executive Committee made up of senior management officials made all decisions regarding restructuring. The Executive Committee determined that a certain number of positions in each area of the respondent’s two casinos needed to be eliminated. The Director of each area was asked to identify the lowest performing employees in each job classification, based on the past three to four years performance ratings (to the extent that the employees had been employed that long).

21Ms. Dutton and Mr. March testified that they responded to the request for the lowest performing associates by using the performance ratings which are input annually into the respondent’s computer system. Their evidence was supported by the documentation submitted by the respondent.

22Ms. Dutton testified that she was asked to identify the lowest performing associates in various positions in the area of Table Games and she did so, based on her knowledge of the associates and the computer generated performance ratings. In particular, she was asked to identify the five lowest rated Floor Supervisors in the area of Table Games and she did so. The applicant fell within the lowest five Floor Supervisors in terms of previous performance assessments over the past three to four years.

23The applicant submitted that as an Asian employee with significant seniority, I should infer that the decision to terminate his employment was prima facie discriminatory.

24The respondent’s uncontradicted evidence was that, of the 104 associates whose employment was terminated in the 2005 restructuring, only two were identified as being of Asian descent, despite a large percentage of associates of Asian descent. While the respondent was unable to provide statistics with respect to the background of all associates in 2005 (as they did not keep such statistics), they attempted to quantify their current workforce. Despite having further restructured and laid off an additional 45 Floor Supervisors and Pit Supervisors in 2009, by February 2010 the respondent’s workforce consisted of approximately 215 full time Table Game Supervisors, of whom approximately 56 were identified as being of Asian descent, and approximately 40 Pit Supervisors, of whom approximately five were identified of being of Asian descent.

25This uncontradicted evidence rebuts any inference that the downsizing was used as a mask to target him because of his race.

26The applicant’s perception that he was treated unfairly when his employment was terminated after ten years of service, when other associates with less service were kept on, is understandable. Length of service is considered by many employees to be important. However, an employer is entitled, subject to the restrictions of the individual contract of employment or collective agreement, if any, to use a criterion other than length of service in determining which employees to terminate. The decision to use a criterion other than length of service is not necessarily an indication that discrimination on the basis of race is at play.

27The Application is dismissed.