Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 On Oct. 5, a final investigation meet- ing was held and Covelli was given a "last chance" to answer any questions he had not yet answered and support his explanations. Covelli said he had followed procedures and felt he was being harassed. When asked about leaving a shift six hours early, Covelli said "I wouldn't do that." e city terminated Covelli's employment that day for fraudulent use of sick leave, false reporting of hours worked, and failure to co- operate in the investigation. Covelli, through the union, grieved the dismissal. misconduct warranted dismissal: Arbitrator e arbitrator found there was no doubt Covelli travelled to the Dominican Repub- lic while on sick leave. e fact he had his friend purchase tickets for the same date he requested sick leave and the co-work- er's report that he had said he planned to go in the fall even though he had no vaca- tion time left led to the conclusion Covelli had planned in advance to use sick leave so he could make the trip. e arbitrator noted Covelli had specifi- cally requested those dates for time off work and the doctor initially hoped he wouldn't go out of town but later said it was good for Covelli's well-being to leave the country. e arbitrator characterized the doctor's notes as a "well-intended effort to help (Covelli) and be supportive of (Covelli's) efforts to get his job back." ough Covelli's personal issues in the Dominican may have caused him stress, they weren't serious enough that he wasn't able to work, as he didn't miss any work lead- ing up to the trip, said the arbitrator. e arbitrator found Covelli went to the Dominican Republic for personal reasons and any stress that came from the issues in the Do- minican Republic was not bad enough to cause a condition where he couldn't work. His avoid- ance of the normal practice of calling in sick, management's phone calls, and questions as to his whereabouts were all part of his intention to mislead his employer, said the arbitrator. e arbitrator also found the log book and alarm records were sufficient evidence to show Covelli "repeatedly arrived for work late or left work early" without making ap- propriate notations so the city could adjust his actual hours of work. As a result, he was paid for time he wasn't at work. Covelli him- self acknowledged the importance of making such notes by saying he normally made them, though he didn't seem to have followed through, said the arbitrator. e arbitrator noted the city's investiga- tion into the falsifying of hours could have been better with regards to the day Cov- elli left work six hours early, as the manager Covelli claimed had given him permission was not interviewed. It also didn't investigate Covelli's claims another custodian was often late or left early and wasn't disciplined, which was in fact the case. However, this seeming "discriminatory penalty argument" didn't detract from the seriousness of Covelli's mis- conduct, said the arbitrator. ough Covelli had a lengthy record of service with no previous discipline, this did not mitigate his "flagrant and rather brazen attempt to mislead the employer for his per- sonal gain," said the arbitrator in upholding the dismissal. For more information see: • Toronto (City) and Toronto Civic Employ- ees' Union, Local 416 (Covelli), Re, 2014 CarswellOnt 16935 (Ont. Arb.). January 21, 2015 | Canadian Employment Law Today AbouT THe AuTHoR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. credit: iryna rasko/shutterstock

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