Employer had evidence of poor performance; worker couldn't prove protected ground
The British Columbia Human Rights Tribunal has dismissed a worker’s complaint that a perceived criminal conviction played a role in her dismissal for cause.
The Great Canadian Gaming Corporation operates the Hard Rock Casino in Vancouver. In November 2018, the worker applied for the position of surveillance operator at the casino. After an interview, the casino offered her the position, subject to her obtaining a gaming worker registration.
The registration was required by the province’s Gaming Policy and Enforcement Branch for all gambling industry workers. It involved a criminal record check and a credit check.
The worker’s registration was successful, so she started training. She worked four shifts from Dec. 22 to Dec. 25. The casino’s surveillance manager was on vacation, so a surveillance supervisor who was the worker’s immediate supervisor was in charge.
According to the worker, on her third day of work, the supervisor told her that he noticed how long it had taken to get her gaming license and he thought it must be because she had a criminal record. He added that he didn’t like “people like [her],” which shocked the worker. She felt that he said it because she wasn’t able to speak freely to the absent manager.
It can be tricky to determine when and where to request criminal record checks, according to the employment law blog.
Fired for poor performance
On Dec. 25, the surveillance supervisor emailed the surveillance manager strongly recommending that the worker be dismissed because of her poor job performance and attitude. He provided examples of both and asked permission to terminate her employment, which the manager authorized.
That day, the supervisor informed the worker that her employment was being terminated because she was “not a good fit for the role.”
Two days later, the worker emailed the manager alleging that the supervisor was prejudiced against her. She threatened to sue both of them along with the organization if the casino didn’t refund her expenses from the gaming worker registration application and an alcohol server course. She did not refer to any belief that an inference of a criminal record played a role in her dismissal.
One year later, on Dec. 27, 2019, the worker filed a complaint, alleging that the supervisor, the manager, and the casino discriminated against her on the ground of an unrelated criminal conviction.
Employers are not prohibited from asking job candidates about police records, but there are human rights and privacy concerns, says an employment lawyer.
Supervisor’s comments discriminatory: worker
The worker’s complaint included statements that the supervisor had little knowledge about the gaming industry, didn’t respect her time, and made “nonsensical comments about how she was to access coffee.” As to a protected ground of discrimination, she said the supervisor’s comments about a possible criminal record referred to “an unrelated criminal or summary conviction” and he harassed her over her four shifts.
The worker also said that the supervisor’s perception that she had a criminal record affected his treatment of her and he fabricated the examples of poor performance.
The worker didn’t allege discrimination by the manager, but she complained that her treatment was because the manager didn’t show “a presence in the surveillance room” at least once during her four shifts.
The joint respondents applied to dismiss the complaint.
The tribunal noted that to establish discrimination, a worker must prove that they have a characteristic protected from discrimination, there was an adverse impact in their employment, and the protected characteristic was a factor in the adverse impact.
An employer may not have intended to discriminate against a job candidate, but its comments and attitude demonstrated age and race discrimination, the Ontario Human Rights Tribunal ruled.
No knowledge of any convictions
The supervisor denied making the comment or that he knew whether the worker had a criminal record or past convictions. He added that the fact that she received her gaming worker registration showed that nothing on her background check raised a concern.
The manager also denied knowing whether the worker had a criminal record and he only knew that she had received the gaming worker registration. He stated that he authorized the supervisor to dismiss the worker because he was “an experienced employee and I considered him to be my top trainer of new employees.”
Initially, the tribunal dismissed the complaint relating to the manager, as there was no protected characteristic or adverse impact alleged that was related to his conduct.
As for the supervisor’s comments, the tribunal found that the worker’s credibility suffered from the fact that she didn’t raise any issue of potential discrimination in her initial complaint email to the casino. However, the tribunal also found that even if the comment was made, it wasn’t enough to move her complaint beyond speculation in light of the documented examples of poor performance. The worker’s allegation of fabricated performance issues was also speculative, the tribunal said.
The tribunal determined that the worker would not be able to prove that a perception that she had a criminal conviction was a factor in her termination and dismissed her complaint as having no reasonable prospect of success. See Travadi v. Great Canadian Gaming Corporation and others, 2022 BCHRT 119.
A worker’s belief of discrimination does not make it fact, according to the Federal Public Sector Labour Relations and Employment Board.
