HomeMy WebLinkAboutKenny 10-01-19
IN THE MA TIER OF AN ARBITRATION PURSUANT TO
SECTION 49(4) OF THE LABOUR RELATIONS ACT,
.R.S.O. 1995, c.L.2, AND ALL AMENDMENTS THERETO
AND IN THE MATTER OF AN ARBITRATION ARISING OUT OF
THE GRIEVANCE OF MICHAEL KENNY AGAINST CASINO NIAGARA
PURSUANT TO A COLLECTIVE AGREEMENT BETWEEN:
COMPLEX SERVICES INC. COB CASINO NIAGARA
AND NIAGARA FALLSVIEW CASINO RESORT
- and -
OPSEU LOCAL 278
SOLE ARBITRA TOR:
Richard L. Verity, a.c.
FOR THE EMPLOYER:
Richard Paris
Ken Conhiser
Counsel - Hicks Morley Hamilton Stewart
Vice President, Legal Administration and
Chief Compliance Officer
Director of Security
Security Manager, Casino Niagara
Simon E. Mortimer
Bruce Caughill
FOR THE UNION:
Tim Hannigan
Jim Storin
Michael Kenny
Counsel- Ryder Wright Blair and Holmes
Union Steward
Griever
HEARINGS:
July 23, 2008
Niagara Falls,Ontario
February 24, 2009
March 23, 2009
May11, 12, 13, 18, 19,20,2009
July 14, 2009
September 15, 28, 2009
Thorold, Ontario
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A WARD
Michael Kenny, aged 44, was hired as a security officer on September 10, 1996 in
advance of the opening of Casino Niagara in Niagara Falls on December 17, 1996. His
employment as a security officer was terminated on May 23, 2008 allegedly for just cause
pursuant to article 11.05(a)(i) of the collective agreement in effect from April 1 , 2006 until
March 31,2009. The employer (Falls Management Group L.P.) operates two separate
facilities in Niagara Falls - Casino Niagara and Niagara Fallsview Casino Resort, both of
which are covered by one licence and one collective agreement. Complex Services Inc.
is the payroll provider for Falls Management Group. Complex Services Inc. is also a part
of Falls Management Group.
The reasons for termination are explicitly set out in a letter, dated May 23, 2008,
which was signed by Casino Niagara Security Manager, Ken Conhiser. That letter (Exhibit
3) reads as follows:
Re: Separation of Emplovment
Please be advised that your employment with Complex Services Inc. is being separated,
effectively immediately, for just cause pursuant to Article 11.05(a)(i) of the Collective
Agreement.
On May 19, 2008 at approximately 2:15pm, while assigned to the Escalator entrance, you
permitted an 11 year old boy to enter the casino gaming floor. The boy entered
unchallenged, as you made no attempt whatsoever to discharge any of your duties or
responsibilities as a Security Officer. Your total disregard for established Security protocols
constitutes a material breach of AGCO regulations.
The incident is serious enough on its own merits to conclude that you are unable to
responsibly continue in your role as a Security Officer. Your previous history of misconduct
in the workplace further confirms this point.
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Please return your security identification, AGCO Licence, SOP manual, uniforms, and all
other company property to the Human Resources Department at the Montrose Associate
Centre within the next three (3) days. A record of employment and final paycheque (if
applicable) will be processed after those items have been received.
Please note that you are prohibited from visiting any of the Niagara Casino properties for a
period of six months effective the date of this letter.
The letter set out above, signed by Security Manager Ken Conhiser, was written by
Director of Security Richard Paris. In a grievance, dated May 27,2008, Mr. Kenny alleges
that he was unjustly terminated by the employer in violation of article 4 of the collective
agreement (Management Rights) and article 11 (Discipline, Suspension, Dismissal). By
way of settlement, Mr. Kenny seeks reinstatement with full remedial redress.
The relevant provisions of the collective agreement read as follows:
11.05 (a)
Certain offences are of such gravity and importance that they shall be
deemed to justify immediate discharge. Where the dismissal of an
employee is made the subject of a grievance which proceeds to arbitration
and the dismissal is for one or more of these serious offences, the Employer
shall only be required to establish that the employee committed the offence.
If it is established that the employee committed the offence then the
dismissal shall be deemed to be for just cause and the arbitration board
shall have no power to alter or substitute the penalty.
The offences subject to the procedure outlined in this paragraph are:
(i) material breach of AGCO regulations;
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I am given to understand that although the first collective agreement between the
parties came into effect on April 1 , 2003, this is the first time that the employer has relied
upon article 11.05(a)(i) in terminating an employee at Casino Niagara.
At the outset, it is helpful to address the wording of article 11.05(a)(i). In my opinion,
the words used in that paragraph of the collective agreement are clear and unambiguous.
Having said that, however, the arbitrator has not been given much latitude in terms of what
the employer is required to establish and the remedy imposed. Article 11.05(a) specifies
that "the Employer shall only be required to establish that the employee committed the
offence". Once a finding is made to that effect the article goes on to provide that "the
dismissal shall be deemed to be for just cause". Finally, under this provision, I have no
authority "to alter or substitute the penalty".
The second paragraph of article 11.05(a)(i) states that "specific offences" outlined
therein are subject to the procedure described in the first paragraph. In the instant
grievance, the specific offence relied upon by the employer is "material breach of AGCO
regulations". Regulations are as set out in Ontario Regulation 385/99 pursuant to Gaming
Control Act 1992. AGCO, the Alcohol and Gaming Commission of Ontario, is the
"Regulator" which is responsible for the administration of the Liquor Licence Act and the
Gaming Control Act in addition to other duties. The Ontario Lottery and Gaming
Corporation (OLG) is the "Operator". In the Alcohol and Gaming Regulation and Public
Protection Act, 1996, the Gaming Control Act, 1992 and Ontario Regulation 385/99 there
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is a complex registration regime which sets out various categories of registrants. Although
the nomenclature differs between the Acts, relevant examples of registrants include
"registered gaming assistant", "trade union", "suppliers", "operator", arid"gaming premises".
Under the heading "Persons Prohibited from Playing Games of Chance", Falls
Management Group relies upon s. 32(1) which reads "an operator of gaming premises
shall not permit the following individuals to play games of chance at the premises: 1.
Individuals under 19 years of age ...".
The dispute between the parties focuses on the phrase "material breach of AGCO
regulations". The parties agree that the word "material" means "important, and
"substantial" within the definition of material as described in Blacks Law Dictionary 6th Ed.,
1990. Counsel for the employer argues that material must mean that the employee's
misconduct is material to the AGCO Regulation. An issue between the parties is whether
or not the grievor is an "operator" within the meaning of s.32 of Ontario Regulation 385/99.
The union contends that the grievor is not an "operator" and that accordingly, there has
been no violation of the regulations. The employer argues that there has been a violation
of the regulations and that the grievor when performing duties at a casino entrance is an
operator or at least is acting as an operator.
The following facts are helpful by way of background information. The importance
of denying entry to underage patrons into gaming premises is an issue which is constantly
broughtto the attention of casino employees in Niagara Falls. For example, on September
13, 2000 Jerry Cooper, Director of Legal Services and Deputy Registrar Alcohol and
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Gaming Commission of Ontario sent the following fax to Commercial Casinos, Ontario
Lottery and Gaming Corporation - Charity Casinos, Slot Machine Facilities and Great Blue
Heron Charity Casino. The notice entitled "Underage Patrons in Gaming Premises" reads
as follows (Tab 19 - Exhibit 6):
The Alcohol and Gaming Commission of Ontario requires the operator of a gaming facility
to provide incident reports to be filed each time an underage person (under 19 years of age)
gains entry to the gaming facility.
We appreciate that a large number of patrons pass through gaming facilities and the number
of underage persons accessing the facilities is relatively small. However, we are in receipt
of reports in which the first stage of security failed to check for identification of persons who
were subsequently checked on the floor and determined to be under 19 years of age.
Operators have a responsibility to prohibit entry to underage persons and to ensure they are
not permitted to gamble. Security officers must be trained to as.k for identification (the
general approach is to ask for ID for anyone who appears to be under 25 years of age) and
operators must have sufficient security officers present at entrances to ensure that ID is
requested from the appropriate persons. Also, gaming floor staff must be trained to monitor
for potential underage persons. Also, gaming floor staff must be trained to monitor for
potential underage persons on the floor and follow the gaming facility's procedures respecting
detection of underage persons.
We appreciate the efforts that have been made to date by many facilities to prevent entry by
underage persons. At the same time, I want to emphasize the importance of keeping
underage persons out of the gaming facility. We are monitoring the solution and take
appropriate disciplinary action in situations where underage persons have been permitted to
play games of chance in a gaming facility without being asked to produce identification.
The grievor acknowledges that he has been trained to require identification from
apparently underaged persons and that it had always been his practice to do so.
AGCO requires the operator of a gaming facility to provide incident reports to be
prepared each time an underage person (under 19 years of age) gains access to a gaming
facility.
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Under the Terms of Registration of Falls ManagementGroup LP (Tab 6 - Exhibit 5)
the following wording appears:
"WHEREAS under section 7(1) of the Gamino Control Act 1992, S.O. 1992, c.24, as
amended (the "Act"), a registration is subject to such terms to give effect to the purposes of
the Act as the Registrar of Alcohol and Gaming (the "Registrar") proposes and the applicant
consents to, the board of the Alcohol and Gaming Commission imposes or the regulations
prescribe;
NOW THEREFORE, the Registrar proposes that the registration of the Falls Management
Group L.P. ("FMG") shall be subject to th'e following terms and conditions, in addition to those
terms and conditions prescribed under the Ontario Regulation 69/94 on the Registration of
Suppliers and Gaming Assistants:
Persons under the Age of Nineteen
1.
(1 )
FMG shall not admit persons under the age of nineteen to the casino.
(2) Notwithstanding s.1 (1), a registered gaming assistant or supplier who is
eighteen (18) years of age shall be admitted to the casino for the purpose
of his or her employment.
(3) Notwithstanding s.1 (1), a casino operator may employ a person who is 18
years of age in a position that does not require registration provided that the
duties of that position do not require the individual to access the casino floor.
In the Security Plan, approved February 14, 2005 (Tab 9 - Exhibit 5) for Casino
Niagara / Fallsview Casino and Resort the following appears:
A. MINORS
(a) Proof of Aqe
The terms and conditions of the Falls Management Company's registration provides
that individuals under the age of 19 cannot be permitted entry into the Casino unless
the individual is a registered gaming assistant or supplier employed by the Casino
and at least eighteen years of age. Any person entering or in the Casino whose
appearance causes a question to be raised concerning their age will be confronted
and requested to produce valid identification that establishes their age. Only valid
government-issued photo identification is acceptable. (e.g. military ID, drivers
licence, passport, Ontario health card, citizenship card, and any photo card issued
by the Alcohol and Gaming Commission of Ontario or the Liquor Control Board of
Ontario under the Liquor Licence Act. The item of identification must include a
photograph of the person and state his or her date of birth and must reasonably
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appear to have been issued by a government. When a patron is refused entry, the
Officer shall inform all Officers assigned to door positions of the description of the
under age patron(s).
(b) Minors Found on the Gamino Floor
1. Any individual under age 19 who is found on the gaming floor
and/or gambling will be escorted to the Security Offices and be the
subject of an incident report. Surveillance and the O.P.P. will be
notified. All relevant information including the minor's personal
information, details of his/her entry into the Casino, and details of
any persons in the company of the minor will be recorded.
(c) Sionaqe
The Casino will have signage posted that will in a clear, concise manner
spell out the policy of underage patrons in the Casino. The signage will be
posted at all entrances to the Casino.
Under Casino Niagara Security Department Standard Operating Procedures (Tab
10 - Exhibit 5), Policy A-4 the following General Rules of Conduct are specified:
1. Security Officer must maintain vigilance and alertness at all times while on duty.
2. Security Officers will maintain professional posture and look alert at all times
regardless of area or duty assigned. No slouching or leaning against walls, tables
or equipment.
4. Engage in conversation with customers and employees that are productive and
deliver on our company's service commitments. Avoid unnecessary socialization
that may interfere with your responsibilities while on duty.
6. Security Officers will not patrol with their hands in their pockets, chew gum or have
toothpicks etc. in their mouth.
7. Maintain a constant lookout for underage guests and other suspicious persons.
Check out same.
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Similarly, under Casino Niagara Security Department Standard Operating
Procedures, Policy A-6 at p. 8 (Tab 11 - Exhibit 5) reads:
Z. MINORS GAMBLING/LOITERING
1. Proof of Age
The Gaming Control Act of Ontario requires that any individuals be nineteen
years of age or over to play games of chance in a Casino.
Section 1 of the terms and conditions of the Falls Management Company's
registration provides that individuals under the age of 19 cannot be
permitted entry into the Casino unless the individualis a registered gaming
assistant or supplier employed by the Casino and at least eighteen years of
age.
Any person entering or in the Casino whose appearance causes a
question to be raised concerning their age will be confronted and
requested to produce valid identification that establishes their age;
specifically, Officers must request identification from anyone who
. appears to be 25 years or younger.
Only government-issued photo identification is acceptable (e.g.
military ID, drivers licence, passport, Ontario health card, citizenship
card, and any photo card issued by the Alcohol and Gaming
Commission of Ontario orthe Liquor Control Board of Ontario under
the Liquor Licence Act.)
The item of identification must include a photograph of the person
and state his or her date of birth and must reasonably appear to
have been issued by a government. Student cards and bus passes
are not acceptable. When a patron is refused entry, the Officer
shall inform all Officers assigned to door positions of the description
of the under age patron(s). The information is to be recorded on
the refusal of entry form.
2. Found on the Gaming Floor
1. If a minor is found on the gaming floor, Surveillance is to be notified
immediately of the location and description of the minor.
2. Contact the Security Shift Manager and Security Supervisor.
3. O.P.P. will be notified.
4. The minor will be escorted to the Security Office where an
investigation will take place.
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5. If the minor is with a group, they will also be brought to the Security
Office providing they are of age. The Security Shift Manager will
decide whether to issue trespass notices to the members in the
minor's party.
3. Signage
1. Casino Niagara will have signage posted that will in a clear, concise
manner spell out the policy of underage patrons in the Casino.
2. The signage will be posted at all entrances to the Casino.
Under the General Compliance 2007 documents for Casino Niagara (Tab 14 -
Exhibit 5) the following provisions appear at p. 8:
MINORS
Patrons must be 19 YEARS OF AGE to enter Niagara Fallsview or Casino Niagara.
The Gaming Control Act specifically prohibits those under the age of 19 from playing games
of chance in a Casino. The Liquor License Act prohibits those under the age of 19 from
purchasing or being served alcoholic beverages.
Should Niagara Fallsviewor Casino Niagara not comply with the Terms and Conditions of
their AGCO Registration or the conditions set out on the Liquor Licence, the Casinos:
1. Are in violation of the Gaming Control Act, and/or the Liquor License Act,
2. Are at risk of being charged with an offence,
3. May be subject to a Corporate fine of up to $500,000
4. May lose or have their Liquor License or Gaming License suspended
Casino Niagara and Fallsview Security Compliance 2007 documentation (Tab 15 -
Exhibit 5) under the heading "Minors" the following information is relevant:
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Patrons must be 19 years of age to enter Niagara Fallsview or Casino Niagara.
The policy of Niagara Fallsview/Casino Niagara is to request identification from all patrons
who appear to be 25 years of age or under. -
The Gaming Control Act specifically prohibits those under the age of 19 from playing games
of chance in a Casino. The Liquor License Act prohibits those under the age of 19 from
purchasing or being served alcoholic beverages.
Compliance relating to minors is listed as a condition of Falls Management Company's
Terms and Conditions of Registration, which states "the Operator (FMC) shall not admit
persons under the age of 19 to the Casino". A condition of the Niagara Casinos Liquor
License, further states that "no minors are permitted in the gaming areas of the premises".
The facts of the Victoria Day incident on Monday, May 19, 2008 are relatively
straightforward. On that day the grievor worked the day shift beginning at 8:05 am. At
approximately 2:15 pm, the grievorwas performing security officer duties working alone at
Casino Niagara's escalator entrance known as "Echo I". That posting is located in a noisy
area which contained both the escalators and waterfalls. Video surveillance tape at the
escalator post recorded that at 2: 15 pm the grievor waved through three people including
a minor, without challenging the minor to produce identification to establish age.
Subsequent events established that the minor was an 11 year old boy dressed in a bulky
winter coat and fishing hat. The two persons accompanying the minor were his mother and
an unidentified male. Approximately five minutes after gaining access to the casino, the
minor was observed and challenged by a casino employee near pit 2 on level 3. The
mother and her son were detained and subsequently the minor was identified by Shift
Manager Kelly Harriman as an 11 year old child.
There was no dispute that the mother and the unidentified adultmale were overthe
age of 25 years. Subsequently, an Underage Patron Report was prepared (Tab 15 -
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Exhibit 6), as was a Security Report (Tab 16 - Exhibit 6) and a series of reports from
numerous witnesses on the gaming floor.
Shortly after 3:00 pm, the grievor was brought to Shift Manager Harriman's office
arid asked to prepare a handwritten report. That report (Tab 18 - Exhibit 6) reads as
follows:
At approx 1505 hrs I was called into the security officer [sic] by s/m Harriman where I was
notified that I apparently let a minor into the casino. I have no recollection of any minor giving
[sic] access through my post.
The grievor was promptly sent home by the shift manager pending an investigative
suspension. That suspension lasted until Friday, May 23 at which time the grievor was
instructed to return to the workplace at 8:35 am.
At 8:45 am on May 23, the grievor attended the video surveillance room in the
presence of Union Steward Jim Storin and Security Manager Ken Conhiser where they
viewed the video tape which showed the entry of the minor and two adults. The grievor
reviewed the video tape four times. At 8:50 am, Mr. Conhiser escorted the grievor and
Union Steward Storin to his office where he allowed them to meet for several minutes.
Finally at 8:55 am, Mr. Conhiserterminated the grievor's employment by giving him a copy
of the termination letter (Exhibit 3). The grievor was escorted out of the casino by Union
Steward Storin at approximately 9:00 am on Friday, May 23,2008.
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Essentially there were two principal witnesses called by the employer - Bruce
Caughill, Vice-President, Legal Administration and Chief Compliance Officer, Richard
Paris, Director of Security for both Niagara Casinos, Both Messrs. Caughill and Paris
testified that each viewed the video surveillance evidence, the video surveillance reports
and supporting documentation and separately concluded that termination of the grievor's
employment was the appropriate remedy. In addition, Mr. Caughill in Exhibit 7 reviewed
three incidents, two in 2001 and one in 2003 in which charges were laid in the Ontario
Court of Justice (Provincial Offences) and substantial monetary fines ($106,250.00;
$112,505.00; $62,505.00 respectively) were imposed by the Courts against Niagara
Casino for individuals under the age of 19 being allowed to play games of chance.
According to Mr. Caughill, as few as seven and as many as 20 minors a year gain access
to the gaming floor at the Niagara Casinos and although termination was not a common
occurrence, it did occur occasionally.
At the hearing on February 24,2009, the union made a production request for a list
of unchallenged minors who had gained entry to the gaming floor. The list was prepared
~ J.h h' ~V1 h 2'"' 2001"> d J. d' r- h'b'J. 8 M C h'I' J. J.'~' d J. h'
lor lei eanng on I larcl 0, :::1 an enlere as eX I il . I r. augl Illeslllle as LO IS
knowledge of 30 incidents of the 35 listed between 2001 and 2008 in which security
officers received a one day, three day or five day suspensions. These included six
incidents in which termination was found to be the appropriate remedy,
Mr. Caughill testified that in circumstances where there were mitigating factors
present, the practice was to substitute a period of suspension in lieu of termination.
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According to the testimony of Mr. Caughill, there were no mitigating factors present in the
instant grievance.
The second principal witness for the employer was Director of Security Richard
Paris. He was appointed to that position on October 21,2001, after his predecessor had
been terminated because of minors gaining access to Casino Niagara. When the new
casino opened in 2004, Mr. Paris was given the added responsibility of Security Director
at Niagara Fallsview Casino Resort.
Mr. Paris reviewed the security structure in place for both casinos and in particular
the duties of a security officer. He went on to testify that a security officer works an 8%
hour shift with two half hour breaks. Mr. Paris was involved in the first set of negotiations
leading to the first collective agreement for the period April 1 , 2003 to March 31, 2006. He
was involved in the second collective agreement from 2006 to 2009. Similarly, he was
involved in the last set of negotiations for the current collective agreement which has now
been resolved.
The Director of Security reviewed the legislation affecting all employees at the
casinos - the Gaming Control Act, 1992, Ontario Regulation 385/99; Liquor Control Act,
Liquor Licence Act and the terms of registration of Falls Management Group LP. In
addition, Mr. Paris reviewed the specific duties of a security officer outlined in the Casino
Niagara Security Department Standard Operating Procedures - General Rules of Conduct,
(Tab 10 - Exhibit 5), the Casino Niagara Security Department Standard Operating
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Procedures (Rules, Regulations and Policies) (Tab 11 - Exhibit 5), Casino Niagara Security
Department Standard Operating Procedures -Identification, Policy G-31 (Tab 12 - Exhibit
5); and Casino Niagara Security Department Standard Operating Procedures - (Rules,
Regulations and Policies), Policy A-6, (Tab 13 - Exhibit 5) together with general
compliance documents for Casino Niagara and Fallsview (Tab 14 - Exhibit 5) and Security
Compliance Documents 2007 (Tabs 14 and 15 - Exhibit5).
Mr. Paris made particular reference to page 56 of the Security Compliance 2007,
which clearly stated that patrons must be at least 19 years of age to enter Niagara
Fallsview or Casino Niagara. The policy of both casinos is to request identification for all
patrons who appear to be 25 years of age or under. Mr. Paris testified that the Gaming
Control Act specifically prohibits those under the age of 19 from playing games of chance
in the casino and the Liquor Licence Act prohibits those under the age of 19 from
purchasing or being served alcoholic beverages. Compliance relating to minors is listed
as a condition of the Falls Management Company's Terms of Registration which states "the
operator (FMC) shall not admit persons under the age of 19 to the casino". A condition of
the Niagara Casino's liquor licence further states that "no minors are permitted in the
gaming areas of the premises". Reference was made to the fact that should Niagara
Casinos not properly comply with the terms and conditions of their AGCO registration or
the conditions set out in the Liquor Licence, the Casinos
· are in violation of the Gaming Control Act and/or the Liquor Licence Act
· are at risk of being charged with an offence
· may be subject to a corporate fine of up to'$500,000
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· may lose or have their liquor licence or gaming licence suspended
According to the testimony of Mr. Paris, he received a telephone call within minutes
of the Victoria Day incident, from Casino Security Manager Ken Conhiser. He looked at
the Victoria Day 2008 Incident Report and the surveillance video tape, the report of
Supervisor Ray Frigault (Tab 10 - Exhibit 6), the report of dealer Aaron Fritz (Tab 11 -
Exhibit 6), the report of Pit Manager Sandra Lane (Tab 12 - Exhibit 6), the incident report
of Table Games Shift Manager Tino Trinci (Tab 13 - Exhibit 6), Shift Manager Kelli
Harriman's incident report (Tab 14 - Exhibit 6), Surveillance Department Underage Patron
Report (Tab 15 - Exhibit 6), Security Report (Tab 16 - Exhibit 6), Ken Conhiser's report
(Tab 17 - Exhibit 6) and Michael Kenny's report (Tab 18 - Exhibit 6). In addition, Mr. Paris
reviewed the grievor's file and looked at all disciplinary matters currently on file. In the
words of Director of Security Richard Paris, the incident in question "was a complete failure
(on the part of the grievor) to exercise the functions of a security officer.
In Mr. Paris's opinion, the grievor failed to comply with standard operating
procedures and general rules of conduct. He failed to maintain vigilance and alertness on
the job at the escalator entrance, he failed to maintain professional posture in the sense
that he was slouching and leaning against the equipment, his hands were in his pockets,
and he failed to maintain a constant lookout for underage guests. After watching the
surveillance video at the escalator entrance, Mr. Paris concluded that the grievor did not
appear to have made ey.e contact with the minor. In Mr. Paris's own words "I see no
reason whatsoever for (the grievor) not to see that child and to have questioned him in the
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usual fashion". Mr. Paris testified that, as a security officer, the grievor is expected to look
at all people as they enter the casino and ask for identification in the form of proof of age,
if appropriate. Mr. Paris was satisfied that the grievor's actions on the day in question
constituted "a total disregard of his duties".
Mr. Paris stated that there is no automatic termination of employment for allowing
a minor to gain access to the casino floor, in that each case is looked at on its merits.
When assigned to work a casino entrance/exit the prime responsibility of the security
officer is to assume responsibility to monitor people entering the casino. In cross-
examination, Mr. Paris admitted that the underaged guest did not gamble nor did he
attempt to do so. Neither did he, the underaged guest, consume alcohol nor attempt to do
so.
The grievor testified that at 2:15 pm on May 19, 2008, Victoria Day, he was
assigned to the escalator entrance (Echo I). Initially Echo I was a two person post with one
security officer being responsible for the "ins" and a second security officer being
responsible for the "outs". However management decided to reduce the staffing from two
to one security officer. In the grievor's opinion, there should have been two security
officers on duty on May 19 because it was "busy and it was a holiday". On the day in
question the grievor was assigned to work the day shift at Casino Niagara from 8:05 am
to 4:35 pm. He was assigned to work as usual at various locations each of approximately
45 minutes duration.
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The grievor recalled seeing a female entering the casino at about 2: 15 pm who
appeared to be at least 25 years of age and who was carrying and pointing an umbrella.
According to the grievor, he was distracted by the umbrella. He remembers seeing an
unidentified male who was well over the age of 25 years. Surprisingly, the grievor does not
recall seeing a third person, the minor, until his memory was refreshed by viewing the video
tape on March 23, 2008.
In the grievor's words - "I feel terrible", "it should not have happened", "I regret it",
"I made a mistake". At about 3:00 pm that afternoon the grievorwas told by shift manager
Kelli Harriman that he had let a minor into the casino some three-quarters of an hour
earlier. At the request of the shift supervisor, the grievor wrote a short statement of his
recollection of the event (Tab 18 - Exhibit 6) to the effect that he had "no recollection of any
minor gaining access through my post". After giving his statement, he was instructed by
Shift Manager Harriman to go home pending investigation. The grievor was critical of
management for not asking him for a second statement and for not allowing him to view
the video tape until some three or four days later on Friday May 23, the day that he was
teiminated. AccOiding to the giievoi, he was "in disbelief' that he was being terminated
in these circumstances. He testified that he had "many sleepless nights" overthis incident
and what had hurt him the most was the fact that no one from management had asked for
his side of the story.
After viewing the surveillance video tape" the grievor acknowledged, without
hesitation, that the minor should have been subject to identification and stopped from
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entering the casino. The grievor agreed that he was not sufficiently busy at the relevant
time to use the stension ropes that were available for crowd control. Once the grievor saw
the video tape, he recognized the lady carrying the umbrella and testified that he had been
distracted by the umbrella. The grievor acknowledges that had been spoken to on more
than one occasion by management about leaning against the podium and having his hands
in his pockets.
In cross-examination, when shown Casino Niagara Security Department Standard
Operating Procedures (Tab 10 - Exhibit 5), the grievor agreed that, on the day in question,
he had not been vigilant, that he had not been alert, that he had not maintained a
professional posture, that he had his hands in his pockets, that he had not maintained a
constant outlook for underaged guests, that he failed to request production of identification
of a minor, that he had failed to follow proper identification procedures described in (Tab
12 - Exhibit 5) and that he had failed to use a list of identification aids.
~
On day 6 of the hearing, at the request of the parties, I took a view of Casino
Niagara.
Both the employer and the union agree that in the complex legislative structure
applicable to casino's, the grievor as a security officer at Casino Niagara was best
described as a "registered gaming assistant" within the definition of the Gaming Control
Act, 1992.
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The employer's submissions are as follows. Falls Management Group LP operates
the two casinos in Niagara Falls and is the licensee and holds and operator's registration.
Under s. 32(1) of the Ontario Regulation 385/99 an operator of a gaming premises shall
not permit the following individuals to play games of chance at the premises "1. Individuals
unde~the age of 19". Similarly under s.30(1 0) of the Liquor Licence Act",no person under
nineteen years of age shall enter or remain on premises in which the sale of liquor is
authorized if the person knows a condition of the licence or permit for the premises
prohibits the entry of persons under nineteen years of age".
The employer contends that the grievor's actions on May 19, 2008 allowing a minor
to gain admission to the gaming floor, without challenge, is a material breach of the AGCO
regulations contrary to s.11.05(a)(i) of the collective agreement. According to counsel for
the employer, Simon Mortimer, the only issue is whether or not the offence happened and
if so, the arbitrator's authority is limited to making that finding. Simply stated, counsel
argues that under article 11.05(a), the arbitrator has no authority to alter or substitute the
penalty. On these facts, the employer contends that the eleven year old minor improperly
gained access to the casino floor in the absence of any challenge by the grievor. Counsel
contends that there is no excuse for the grievor to say that he did not see the minor.
Counsel m"aintained that the grievor had no justification for not asking for identification of
proof of age. Counsel contends that on the day in question, the grievor in admitting a
minor, made no attempt to perform the duties of his position as a security officer and in
these circumstances there were no mitigating factors. Mr. Mortimer argued that article
11.05(a)(i) was conclusive.
-21-
In the alternative, the employer had just cause having regard to the grievor's
disciplinary record, a three day suspension for irate and aggressive behaviourtowards Shift
Manager Kelli Harriman (on December 22,1999) and a five day suspension for irate and
aggressive behaviour towards another security officer (on September 12, 2003) together
with several other written and oral reprimands. Counsel Mortimer relied on the evidence
of his two principal witnesses, Bruce Caughill and Richard Paris, both of whom testified
that there were no mitigating factors present for the employer to justify the substitution of
a lesser penalty. Finally, the employer contends that the single incident on May 19, 2008
was sufficiently serious to justify termination.
The union contends that there was no violation of AGCO regulations by the grievor.
The union acknowledges that the grievor did not see the eleven year old minor enter the
escalator entrance on the day in question. The union acknowledges, however, that the
child should not have gained access to the casino. The thrust of the union's position was
that there was no reason, in the absence of any gambling and/or alcohol consumption by
the minor, to terminate the grievor's twelve year career.
The union relied upon the list prepared by the employer entered. as Exhibit 8 of
unchallenged minors who gained entry to the gaming floor. Of the 30 entries reviewed in
Exhibit 8, the vast majority of penalties involves suspensions of one, three or five days and
only six incidents involved the termination of casino employees.
-22-
The union argues that past practice can be used as an aid to interpretation. In
these circumstances, it has been common practice to deal with the infraction by way of
progressive discipline rather than summary dismissal. The principal argument of the union
was that article 11.05(a)(i) did not apply in these circumstances. Further, the union argues
that there is no significant breach by the grievor to constitute a material breach. Union
counsel argues that a breach of the employer's policies and procedures does not mean
that it is a breach of the AGCO regulation. The union acknowledges, however, that if the
breach was intentional it may be deemed a material breach. Union counsel Hannigan
stated that a minor accessing the gaming floor can happen and does happen from time to
time which is the reality of the situation of working in a casino.
On the other hand, in the event of a finding that a material breach had occurred,
union counsel argues that I have the power to look at the exercise of discretion in applying
article 11.05(a)(i). Further, the union maintains that I can review the exercise of discretion
conducted by the employer if it involves bad faith or if the discretion has been exercised
in a discriminatory fashion. For the union, Mr. Hannigan accuses the employer of lack of
good faith in comparing how the grievor's case was dealt with in comparison with others
cases where suspensions have been given.
Mr. Hannigan claims that the grievor's treatment under article 11.05(a)(i) is
discriminatory and that the employer did not turn its mind to all of the circumstances.
Union counsel argues that management's handling of the grievor's fate has had a terrible
affect on a twelve year senior employee in difficult economic times.
-23-
Union counsel made reference to the following precedents, Blacks Law Dictionary
6th Ed. definition of "material"; Re United Steelworkers of America. Local 3257 and The
Steel Equipment Co. Ltd. [1964] O.L.AA No.5, 14 L.AC. 356 (Reville); John Bertram and
Sons Co. Ltd. and I.A.M.. Local 1740 [1967] 18 L.AC. 362 (Weiler); OPSEU (Pieter B.
Ku vn ties) and Ministry of Transportation and Communications G.S.B. (unreported
December4, 1984) (Verity); and Siemens Canada Ltd. v. NationalAutomobile. Aerospace.
Transportation and General Workers Union of Canada - CAW-Canada. Local 1941)
(Norman Grievance) (1999), 84 L.AC. (4th) 340 (Snow).
At the outset of my award I wish to make several comments of a general nature.
Having heard evidence over 10 hearing days, I am satisfied that this is not a case of
discrimination or bad faith on the part of the employer.
As a result of a production request by the union, a list of approximately 35
unchallenged minors who gained entry to the casino was introduced as Exhibit 8. The list
involved security officers whose inattentiveness in allowing minors to gain access to the
gaming floor and who were given minor suspensions and some six security officers who
were terminated for their misconduct.
Bruce Caughill, Vice-President and Chief Compliance Officer was questioned by the
parties as to his knowledge of the circumstances of some 30 incidents referred to in Exhibit
8.
-24-
It is hardly surprising that the facts of none of the 30 incidents about which Mr.
Caughill testified were identical to the facts of the instant grievance. Perhaps the closest
parallel involved the termination of Security Officer Mike Wilson (Exhibit 24) for an incident
which occurred on May 7,2005 where his dereliction of duty allowed an eleven year old
boy accompanied by his parents to gain access to the casino. The minorwas in the casino
for less than three minutes before he was noticed by casino staff and, as might be
expected, there was no gambling and no consumption of alcohol by the minor. Security
Officer Wilson had three years seniority and one prior incident of discipline for his
inattentiveness.
The circumstances of the Wilson discipline and the fact that the misconduct was not
lodged under article 11.05(a)(i), in my opinion, does not establish discrimination.
While it is true that the grievor before me has no prior incident of discipline for
inattentiveness, he did have five prior incidents where discipline was imposed, including
a three day suspension on December 22, 1999 for irate and aggressive behaviour and
uttering profanity towards Shift Manager Harriman and a five day suspension on
September 12, 2003 for irate and aggressive behaviour and uttering profanity towards
another security officer.
The grievor was critical of management's decision in reducing the entrance staff
from two security officers to one security officer at the escalator entrance. I do not accept
that this criticism has merit.
-25-
Further, the grievor testified that May 19, 2008, being a holiday - Victoria Day - it
was a busy time. The video surveillance tape would dispute that claim as does the
grievor's testimony that the number of people using Casino Niagara had "reduced
significantly" after the opening of Niagara Fallsview Casino Resort in 2004.
The grievor testified that he was distracted by the child's mother pointing her
umbrella on entering the casino as the reason for not seeing the minor. I find that
explanation difficult to accept.
Management made no request to obtain a second statement from the grievor after
his initial statement on May 19, 2008. I sympathize with the grievor on this issue, however,
it is unlikely, given the video surveillance tape, that a second statement would have
advanced the grievor's case.
Finally, the grievor was critical of management for failing to ask for his version of
events. Cases of this nature are slow to evolve and, accordingly, criticisms in this regard
are not unusual.
One further matter remains - I did not find the case law submitted by the union
helpful in determining this grievance. For that reason, I make no reference to the case law
submitted.
-26-
On the evidence adduced, I am satisfied that on May 19, 2008, the grievor seriously
misconducted himself by failing to ask for identification of proof of age, thereby allowing
an 11 year old minor to gain access to the gambling floor of the casino. It is readily
apparent that few issues are of greater importance to the employer than prohibition of
minors gaining access to the casino. The grievor acknowledges that he is well aware of
the requirements to ask for valid identification of proof of age. Similarly, the grievor
acknowledges that he is well aware of the employer's practice to ask for identification from
anyone who appeared to be under 25 years of age or younger.
The evidence established that the written "Terms of Registration" of Falls
Management Group L.P. and the employer's extensive policies and procedures require that
persons under the age of 19 years shall not be admitted to the casino, with two exceptions
contained in the Terms of Registration - (1) "a registered gaming assistant or supplier who
is eighteen (18) years of age shall be admitted to the casino for the purpose of his or her
employment" and (2) "a casino operator may employ a person who is 18 years of age in
a position that does not require registration provided that the duties of that position do not
iequire the individual to access the casino floQi". Neithei exception applies to the facts of
the instant grievance.
The issue before me is whether or not it may be said that the grievor's misconduct
constitutes a "material breach of AGCO regulations" within the meaning of article
11.05(a)(i). The first question is whether there is a regulation that was breached and the
second question is whether or not it was a material breach.
-27-
There is agreement between the parties that the grievor as a security officer is a
"registered gaming assistant". Under the Gaming Control Act, 1992, a registered gaming
assistant is defined as ilan individual registered as a gaming assistant under this Act".
Under Regulations 385/99 to the Gaming Control Act, 1992, an "operator" is defined "as
the Ontario Lottery and Gaming Corporation or a registered gaming-related supplier who
operates a gaming premises that is a casino, charity casino, slot machine facility or the
premises used for a prescribed lottery scheme under contract with the Ontario Lottery and
Gaming Corporation".
There is also agreement between the parties that the AGCO (Alcohol and Gaming
Commission of Ontario), created under Alcohol and Gaming Regulation and Public
Protection Act, 1996, is the "Regulator" while the OLG (Ontario Lottery and Gaming
Corporation), created under the Gaming Control Act 1992 is the "Operator".
Under the Liquor Licence Act, 1990, s.30(1) states "no person shall knowingly sell
or supply liquor to a person under nineteen years of age". That Act also provides in
8.30(10) that "no person under nineteen years of age shail enter or remain on premises in
which the sale of liquor is authorized if the person knows that a condition of the licence or
permit for the premises prohibits the entry of persons under nineteen years of age".
On the other hand, the Gaming Control Act, 1992, prohibits individuals who are
under the age of nineteen from playing games of chance. Unlike the Liquor Licence Act,
-28-
the Gaming Control Act, 1992, however, contains no prohibition of access to a casino for
those persons under age nineteen.
I would agree with the employer's argument that the "Terms of Registration" of Falls
Management Group LP (the Licencee) is incorporated by reference into their registration.
The Terms of Registration of Falls Management Group L.P. states "FMG shall not admit
persons under the age of nineteen to the casino".
My rationale to a complex series of legislative requirements is as follows: Under
s.5(1) of the Gaming Control Act, 1992, it states that "no person shall, for consideration,
participate in or facilitate in any manner the playing of a game of chance unless (a) the
person is registered as a gaming assistant ...". Under s.21(2) of the Act "a registered
supplier who provides gaming premises shall ensure that the premises is operated in
accordance with this Act, the regulations and the terms of the suppliers registration and the
licences for gaming events held on the premises".
Under s.21 (3) of the Gaming Control Act, 1992, "a iegistered gaming assistant who
is managing gaming premises shall ensure that the premises is operated in accordance
with this Act, the regulations, the terms of registration of the supplier of the premises and
the terms of the gaming assistant's registration and the licences for gaming events held in
the premises".
-29-
Of particular importance to the issue before me is the fact that it is a condition of the
Terms of Registration of Falls Management Group LP that "FMG shall not admit persons
under the age of nineteen years to the casino".
I would venture to suggest that because the grievor's services as a security officer
facilitated the playing of games of chance-, this employee was registered as a gaming
assistant. As a security officer, in my view, he is managing the premises for the operator.
Therefore, under s.21 (3) of the Gaming Control Act, the grievorwas under a duty to ensure
that the premises were operated in accordance with FMG's Terms of Registration which
in turn places upon the grievor a duty to prevent a person under nineteen from gaining
access to the premises.
The grievor appears to have made no attempt to perform his job on the day in
question by failing to prohibit an 11 year old boy from gaining access to the casino floor.
By his own admission, he did not see the minor enter the casino at 2: 15 pm. I would agree
with the testimony of both Bruce Caughill and Richard Paris that there were no mitigating
factors in the instant giievance to justify a reduction of the penalty from termination to a
suspension. I would agree with the words of Director of Security Richard Paris in
describing the grievor's lack,of action, "it was a complete failure to exercise the function of
a security officer". While it may be said that the grievor was an honest and likeable
witness, it may also be said that he was unrealistic in advancing numerous criticisms of his
employer's actions.
-30-
In the absence of any mitigating factors there can be no justification for the
employer to reduce the penalty from a termination to a period of suspension. This is a
clear case of non-performance of the ~uties of a position which, in my view, justifies
summary dismissal.
On th evidence adduced, I am satisfied that the employer has properly applied
article 11.05(a)(i) of the collective agreement to the facts of theJnstant grievance. I find
that the grievor has committed a material breach of AGCO regulations as alleged by the
employer. In the particular circumstances of this case, I have no power to alter the penalty
imposed. In the result, therefore, the instant grievance is dismissed.
DATED at Brantford, Ontario, this 19th day of January, 2010.
~~. / ~
/~~qY A~ 4;h
.......: ....... .,:...................;............ ..,7.............
RICH L. VERITY, Q.C.
SOLE ARBITRATOR