Termination reasonable but worker reinstated by arbitrator

'We're not looking at the conduct in a silo, we're looking at this employee's conduct in the context of their entire employment'

Termination reasonable but worker reinstated by arbitrator

A British Columbia arbitrator has found that termination was not excessive for a casino worker who breached reporting policies for transactions, but reinstated her after considering the context of her employment record and chance for rehabilitation.

It’s an example of how high the bar for just-cause termination can be — even for serious misconduct that could justify termination, says Trevor Thomas, co-founder and partner at Ascent Employment Law in Vancouver.

“We're not looking at the conduct in a silo, we're looking at this employee's conduct in the context of his or her entire employment,” he says. “Because the basic principle is that work is such a fundamental aspect of a person's life — if you're going to make a decision to end someone's employment, it deserves some very thoughtful assessments about whether termination is appropriate.”

Reporting requirements

Gateway Casinos & Entertainment operates 13 casinos in B.C. The 46-year-old worker was hired in 2007 at Gateway’s Grand Villa casino in Burnaby and was promoted to relief dealer supervisor in 2015. The only discipline on her record was three verbal warnings in 2013.

Dealer supervisors were required by the BC Lottery Corporation (BCLC) to produce reports based on large buy-ins by patrons, as one of the province’s measures to crack down on money laundering. One of the main reports was the player table tracking form (PTTF), which recorded the date, table, time of buy-in, denomination of bills used by the patron, total cash buy-in, and the chips provided.

If a single patron had buy-ins totalling $9,000 over a 24-hour period, dealer supervisors had to check the patron’s identification. For singular buy-ins of $3,000 or total buy-ins of $10,000 over a 24-hour period, they had to also complete a source of funds form with receipts. These measures were recommendations from an independent review of money laundering in B.C. casinos.

Dealer supervisors also monitored patrons who had PTTFs, merging multiple ones if they moved to different tables.

All gaming workers completed anti-money-laundering training and an employee handbook included examples of misconduct that could result in discipline, including violating regulatory requirements or laws.

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Chip passing prohibited

On Aug. 30, 2021, the worker was working in the VVIP area of the Grand Villa casino — an area with a higher bet limit than other areas with fewer tables and players. A patron wanted a $2,500 buy-in, which the worker verified. When the patron left the table, the dealer told the worker that he had seen another player pass chips to the patron — which was against the policies of BCLC and Gateway.

The worker couldn’t reach a host or find phone extensions to report it, so she followed the patron — although it was against policy for dealer supervisors to leave the pit area.

Another dealer supervisor informed the worker that the patron had three previous transactions totalling $7,500 on another PTTF, so she merged the two forms. With the $2,500 the worker had verified herself, the patron hit the $10,000 threshold. She approached the patron and obtained his identification, but she didn’t ask for receipts or complete the source of funds form. Instead, she scratched off the $2,500 entry on the PTTF and entered $2,490.

The worker reported the alleged chip passing to Gateway, but not the amendment to the PTTF. An on-site auditor reported the amendment to casino management.

Worker expected discipline but not termination

Gateway conducted an investigative interview and the worker confirmed that she understood the policies and procedures regarding the $10,000 buy-in threshold. The worker explained that she had amended the PTTF because the patron cashed out $10, but she acknowledged that she changed it so she wouldn’t have to ask for a receipt or fill out the source of funds form.

The worker said it was a mistake and she had resorted to the “short cut” because she was afraid of being away from her pit. She promised that she had learned her lesson on the importance of following the policies.

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The worker said she expected a warning or suspension — another employee had received a written warning for coaching a patron to buy in for amounts under $3,000 to avoid the threshold, while another was suspended for the same thing. However, Gateway terminated her employment on Sept. 14 “for fraudulent conduct placing the organization at significant regulatory and legal risk” stemming from her falsification of player tracking information.

Investigation helped

What the employer did right is conduct an investigation and interview once it learned of the misconduct, says Thomas.

“That’s a key step that sometimes gets missed by employers, but [Gateway] did exactly what they were supposed to do, which is investigate the problem,” he says. “And in this particular case, the employer operates in a highly regulated, highly complex system [with] lots of rules, regulations, and procedures — It's not just the employer operating in a silo, it’s subject to BCLC and government regulation.”

In conducting an investigation, Gateway was able to demonstrate both and externally to the BCLC and other organizations that they took the matter seriously.

“[Gateway was saying], ‘We're not going to sweep this under the rug, we're going to investigate and find out what happened and why it happened,’” says Thomas. “And that's really important because, as an employer, you want to show people within the organization and outside of the organization that there are repercussions to your people's actions.”

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Termination excessive: union

The union grieved, arguing that, while discipline was justified, termination was excessive. It pointed out that the circumstances around discovering the original PTTF were unusual, the worker made a judgment error in the heat of the moment, and the worker was a long-service employee with little prior discipline.

The arbitrator noted that the worker was clear on the proper procedures and her actions weren’t rash. Although she took the initiative in following the patron suspected of chip passing, it didn’t mean she could disregard regulatory requirements.

In addition, the worker acknowledged that the patron had reached the $10,000 threshold, so it was a calculated decision to not obtain a receipt or complete a source of funds form and to falsify the PTTF, found the arbitrator.

The worker did not acknowledge in the interview that what she did was wrong, instead saying it was a mistake. This, along with the seriousness of her actions, justified discipline, said the arbitrator.

The worker’s misconduct was not a “momentary aberration" — she knew what was required and thought of a calculated way of avoiding it, which violated the regulatory requirements to which she and Gateway were subject, the arbitrator said. Adding that she showed no remorse during the interview, the arbitrator determined that termination was not excessive.

However, the arbitrator noted that the worker was not dishonest or evasive at the interview and she readily admitted to her actions. Considering her long service and clear record with her acknowledgement of her misconduct, the arbitrator determined that she should be given an opportunity to show that she could continue to be a valuable employee.

Gateway was ordered to reinstate the worker with no back pay, with the one year since her termination serving as a suspension on her record.

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Reinstatement surprising

Given the seriousness of the worker’s misconduct, Thomas says he is surprised at the decision to reinstate the worker.

“She didn't quite reach the threshold of fraud, because I don't think the intent was there for fraud — but there was definitely intent to be dishonest,” he says. “In any employer-employee relationship, trust is a key foundational aspect of that relationship and [the worker] was found to have intentionally breached that trust.”

However, there is a high bar for just cause and decision-makers are going to take the worker’s entire situation into context, Thomas adds.

“When you take all these factors into account — we're trying to get an understanding of whether this employee has a tendency to get themselves into trouble [or] this is a relationship that can work in the future.”

Even though Gateway was ordered to reinstate the worker, the arbitrator noted that termination was a reasonable action for the company to take and it wasn’t liable for any damages. What helped its position are key factors that employers would be wise to ensure applies to their situations, says Thomas — policies and procedures in place, employees knew the expectations and what the repercussions for non-compliance were, Gateway consistently applied them, and it investigated thoroughly.

See Gateway Casinos & Entertainment Ltd. and BCGEU (Jin), Re, 2022 CanLII 94376.

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