Worker continued to work for a month before investigation, dismissal
A British Columbia arbitrator has reinstated a worker at an event facility who was fired for breaching the employer’s policy on evicting guests and physical contact with them.
The worker was hired as an event host for BC Place, a sports and entertainment facility owned and operated by provincial Crown corporation BC Pavilion Corporation, in 2014. His duties included welcoming guests, ushering, access control, responding to guest inquiries, managing crowds, preventing risks of confrontation, and monitoring alcohol consumption of guests. Event hosts worked mostly independently with little supervision.
The worker also worked a handful of shifts as a security person, which had similar duties but also involved de-escalating situations with aggressive guests, with the expectation that physical force was a last resort. Event hosts didn’t have the authority to evict guests and even security guards were supposed to have another person involved in an eviction.
On Sept. 22, 2023, the worker was an event host at a concert. He was assigned to a tunnel between the concourse and seats in a particular section.
Soon after the concert began, the worker saw a guest at the edge of the tunnel and advised him that the tunnel needed to be clear and he should return to his seat. The guest argued and refused to leave, so after another request the worker asked security staff to speak with him. After they did, the guest left the area.
A short time later, the worker saw a guest who was intoxicated. He asked a co-worker with a radio to request security staff and escorted the guest away to find a seat and wait for security staff to arrive. Security and police then escorted the guest out of the facility.
The worker returned to his assigned area and found the same guest as before in the tunnel. He again asked the guest to return to his seat, but the guest refused. Security staff also asked the guest to return to his seat and he did.
Eviction of concertgoer
However, a little later the worker spotted the same guest in the tunnel. He again asked the guest to return to his seat, but the guest was aggressive and swore at the worker, so the worker asked a co-worker to contact security.
The co-worker apparently didn’t call security, so after waiting for a short time, the worker asked the guest to accompany him. The hosting supervisor saw the worker escort the guest out of the seating area with his hand on the guest’s shoulder, and then push him out an exit door with one hand. The supervisor was shocked because event hosts weren’t authorized to evict or touch guests.
According to the worker, he called out to a nearby contract security guard for assistance – only in-house security guards were authorized to evict guests – but the guard didn’t respond.
The supervisor went outside to speak with the guest who, to him, seemed relatively calm and not intoxicated. The guest apologized and said he wasn’t clear about why he was evicted and he was unhappy about being physically touched by the worker.
A security guard asked the worker to go outside to speak with the supervisor and the guest, but the worker got in a heated discussion with the guest. The worker then returned to his post and the supervisor allowed the guest to return to the concert to minimize the possibility of legal action.
Workplace investigation
The supervisor filed an incident report and management reviewed surveillance video that showed the worker with his hand on the guest’s shoulder and pushing the guest out the door.
The worker continued to work over the next few weeks until Oct. 17, when management called him into an investigative interview. The worker said he didn’t recall making physical contact with the guest before escorting him outside, but he said that he was doing his job and what he felt was right in the circumstances, since he had asked for security but none came and the guest was blocking the tunnel. He acknowledged that his frustration with the guest got the better of him and he had exercised poor judgment, saying that he would do things differently in the future.
Management asked the worker if he had done anything wrong and the worker replied, “host shouldn’t be left alone, training issue I guess.” The worker also said event hosts could evict guests and “I’ve being doing this for years.”
The worker wasn’t shown the video surveillance footage at the meeting.
“[Management] was well aware of the video evidence, but they chose not to present it to the worker, so in that sense they were trying to sandbag him a little bit because they were trying to extract his version of events without giving him an opportunity to respond to the video,” says Michael Penner, a Victoria-based labour and employment lawyer with Kent Employment Law. “At that point, he's trying to recollect events from a month prior and he's reasonably forthright, but they had already assessed the worker’s guilt - everything that the worker said that wasn't with an apology or contrition was deemed to be a contributing factor, like he's lying or not owning up to his actions.”
Termination for breach of protocol
Management viewed the worker’s conduct as a serious breach of protocol and believed that he wasn’t being forthright in the interview. On Oct. 25, it terminated the worker’s employment, with the termination letter stating that the worker physically assaulted a guest by pushing him out the door and he didn’t call security for assistance. It also said that the worker’s lack of remorse or accountability during the investigative interview were contributing factors justifying termination.
Six days later, the worker filed a grievance that included an apology for his error in judgment, saying that he had “a lot going on in my personal life right now” and he was talking to a counsellor. The union asserted that termination was excessive, as the worker never denied his actions and the physical contact was brief. It also argued that the worker was never given the opportunity to review and respond to the video footage.
The arbitrator acknowledged that the worker pushing the guest and putting his hand on the guest’s shoulder was inappropriate, but found that it wasn’t a premeditated act of violence. Instead, it was a “spur of the moment aberration” that came from the worker’s frustration from repeated unsuccessful attempts to get the guest to return to his seat, the arbitrator said.
The arbitrator also found that management’s delay in addressing the incident until nearly a month later and its failure to show the worker the video footage weakened its case that the misconduct was worthy of dismissal and the worker was dishonest.
The problem for the company was that it was aware of what had occurred based on the video footage, the supervisor’s report, and the supervisor’s conversation with the guest, but it didn’t do anything for a month, says Penner.
“And not only did [management] sit on the information for a month, they allowed the worker to continue working without any restrictions or limitations - he wasn't suspended with pay pending investigation and he wasn’t reassigned to duties that didn't involve direct interaction with the public,” he says.
Apology, no prior discipline
The arbitrator pointed to the worker’s 10 years of discipline-free service as a strong mitigating factor, as well as his post-termination apology - although his remorse and acceptance of responsibility should have come earlier during the investigation, the arbitrator said.
“They could have taken his statement right away and then if they wanted to revisit his statement once they had gathered the other witness statements, that's fine,” says Penner. “But letting him stew for a month, judging him on not having a perfect recollection, and using that as the basis for compounding the discipline - and withholding the video evidence and not at least allowing him to respond to it - really was their fatal flaw.”
The arbitrator determined that termination was excessive and the worker was capable of returning as a productive employee. BC Pavilion Corporation was ordered to reinstate the worker to his event host position with no loss of seniority, with a suspension lasting from the termination date to the date of the arbitration decision 18 months later.
“If you're going to create an infraction within the workplace that's an immediately fireable offense, you really have to broadcast the policy so everyone's aware of it and you have to enforce it fairly and evenly,” says Penner. “In this instance, over the past 10 years the worker had actually removed several people and had gone unpunished.”
“They knew what the infraction was at the outset, so if it violated some policies where it warranted immediate dismissal, their scheduling of the worker to continue working for the better part of a month before they even interviewed him, certainly contraindicates the seriousness of the offense,” he adds.
