Reasonable belief of facts is insufficient

An employer must prove that the facts did exist to justify a dismissal for cause

Abdul Kazemzadeh was employed by Great Canadian Casinos as a dealer/supervisor (otherwise known as a “pit boss”). After eight years of service Mr. Kazemzadeh’s employment was terminated, allegedly for cause as a result of events on Sept. 1, 1999. Mr. Kazemzadeh brought an action against Great Canadian Casinos for wrongful dismissal and challenged the allegation of just cause.

Great Canadian Casinos based its justification of Mr. Kazemzadeh’s dismissal on his repeated violation of its policy with respect to complimentary drinks for patrons. The casino’s policy permits pit bosses to order complimentary drinks for the players. The drinks were “on the house” and not charged back to the personal account of the pit boss. The pit boss was required to complete and sign a “comp chit” for each drink ordered. The concession waitress would bring the drink to the gaming table, pick up the signed comp chit and return the chit to the concession stand.

The senior management also had this same privilege but the procedure to follow was different: the concession stand waitress would keep a daily running comp tab for each senior manager who would sign it at the end of the day.

In the eight years of employment with Great Canadian Casinos, Mr. Kazemzadeh was never subject to formal disciplinary action or negative performance reviews. There was only one previous warning relating to improper or overuse of his privilege to provide complimentary drinks to patrons. He was confronted and denied the allegation against him on that occasion and nothing further was ever done as a result.

On Sept. 1, 1999, Mr. Kazemzadeh ordered a complimentary orange juice for one of the players from the concession stand. According to the waitress, Ms. Grieves, he instructed her to put the drink on the running comp tab of management. In her evidence at trial, Ms. Grieves testified that she questioned Mr. Kazemzadeh about the propriety of ordering drinks on the management tab. She indicated that he was rude to her telling her to shut up and do it. Ms. Grieves told her supervisor, who reported the incident to senior management. Later that day Mr. Soo, manager of the casino, verbally reminded Mr. Kazemzadeh of the casino’s policy on drink ordering.

A few hours later another waitress, Ms. Estey, told her manager and Mr. Soo that Mr. Kazemzadeh had again placed a complimentary drink order and told her to put it on the management tab. This incident was caught on videotape. The videotape showed Ms. Estey bringing a drink to Mr. Kazemzadeh’s table but she did not pick up nor was she given a comp chit by him. However Mr. Kazemzadeh was seen kneeling down and then standing up in front of the podium and there was a piece of white paper on the podium. It was not possible to tell whether the comp chit was written before or after the waitress had come to the table.

Mr. Kazemzadeh was summoned to Mr. Soo’s office. He was confronted with improperly ordering a complimentary drink on the management tab rather than filling out a comp chit. He denied that he directed the drink be put on the management tab. Ms. Estey accused him of lying and he in turn accused her of lying. The matter was left unsettled. Mr. Kazemzadeh left. Within a half-hour two other employees reported to Mr. Soo that they had seen Mr. Kazemzadeh “do it again.”

Mr. Soo investigated the matter. He viewed the videotape and had three waitresses and a cook confirm in writing that Mr. Kazemzadeh had ordered drinks on management’s tab that day. Mr. Soo terminated Mr. Kazemzadeh’s employment.

In its decision the Court recognized that Mr. Soo believed he had just cause to dismiss Mr. Kazemzadeh. He also had objective grounds to believe that Mr. Kazemzadeh had lied to him and immediately violated warnings that he had been given.

However the test to determine if just cause exists is not whether the employer, subjectively or objectively, had probable and justifiable grounds to dismiss the employee based on the factual situation he believed to be true at the time. The proper test is whether the employer at trial could prove that a set of facts did exist which would justify a finding that the dismissal was for just cause.

The Court held that the casino had not satisfied the test for just cause. The casino only called Ms. Grieves as a witness and not the other waitresses. Mr. Soo was not reasonable in accepting her version of events over that of Mr. Kazemzadeh, given his past record with the casino, and that Ms. Grieves had only been employed for two weeks. Additionally the videotape evidence was not conclusive.

Having found that Mr. Kazemzadeh was wrongfully dismissed, the Court awarded damages in the amount of eight months’ pay in lieu of notice. However the Court reduced this award to five month’s due to Mr. Kazemzadeh’s failure to mitigate his losses.

For more information:

Kazemzadeh v. Great Canadian Casinos Inc., 2002 BCPC 4.

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