Canadian HR Reporter

CANADIAN HR REPORTER June 13, 2016 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW Start by learning the key components with Basic Workplace Investigation Techniques & Report Writing Workshop or enhance your skills with one of our Advanced training sessions. • Investigating Complex Cases • Interviewing and Dealing with Difficult Witnesses • Assessing Credibility • Conducting Workplace Assessments • The Essential Human Rights Primer for Workplace Investigators • Understanding and Addressing Bias • Conducting Sexual Harassment and Violence Investigations Basic and Advanced Workplace Investigation Training for HR Professionals from Canada's Leading Workplace Investigation Experts. For more information and for workshop dates call or visit: (416) 847-1814 | RTworkplacetraining.com | RubinThomlinson.com Learn to address inappropriate workplace behaviour before it becomes a legal issue. City of Kingston workers face consequences after breaking rules Only one deserved reinstatement: Arbitrator Two Ontario workers who were observed leaving work early on multiple occasions and denied it in investigative interviews have received diff erent decisions from an arbitrator. Willie Loyst, 50, and Steve Derve- nis, 50, were arena operators for the City of Kingston, Ont. Both men worked at the Invista Centre, an arena complex that contained four ice pads, meeting rooms and a fi tness centre. Loyst worked full-time and Dervenis part-time at the centre, and they were also responsible for operations at an adjacent sports field. Duties included assisting customers who rented the facility, maintaining the ice and cleaning the change rooms, meeting rooms and concourse. In the summer, they took down the ice, painted the lines and logos, and looked after lighting on the sports fi elds. Operators at the Invista Centre worked on one of two eight-hour shifts — a day shift and a night shift — which overlapped for 30 minutes. ey were entitled to two 15-minute paid breaks and one 30-minute unpaid lunch break. ey were allowed to leave the arena for lunch or coff ee, but needed permission from a super- visor to do so. In 2013, a new supervisor held meetings with employees to ad- vise them they were expected to stay at work for their entire shift. Someone asked if they could leave fi ve minutes early if everything was done but the supervisor said no. In January 2015, he reiterated this policy in an email to all staff . On May 12, 2015, the city re- ceived a complaint from a cus- tomer who had rented the adja- cent sports fi eld a few days earlier. The customer had made three requests at the arena's reception desk to turn on the lights for the fi eld, but the lights remained off and reception was unable to con- tact the arena operators. e supervisor conducted an investigation and learned Derve- nis and another employee were on duty that night. Dervenis said he had been performing other duties and didn't have a function- ing walkie-talkie with him, so he didn't receive the call. However, the city didn't accept Dervenis' ex- planation as he had been unavail- able for two hours. Both Dervenis and the other employee received one-day suspensions. Loyst had also been on duty the evening of May 12. He hadn't been responsible for the sports fi eld, but it was determined he had also been unavailable for two hours and hadn't checked the rinks' compressor readings. He received a written warning. Both Loyst and Dervenis had no previ- ous discipline on their records. Another employee had com- plained earlier about arena op- erators leaving their shifts early, so the city decided to place them under surveillance. Investigators observed and recorded the work- ers entering and exiting Invista Centre for 14 days in late May and early June. After the surveillance was com- plete, Loyst was placed on paid suspension pending investiga- tion. A few days later, he was told to come to a meeting on June 19. Dervenis was also asked to attend the meeting, where several arena operators were interviewed sepa- rately before the city received the investigators' report. In his interview, Loyst said he wouldn't leave the workplace during lunch or breaks. He also claimed he never left the work- place early and hadn't seen anyone else doing so either. Dervenis said he would only leave early if a supervisor asked him to or there was a family emer- gency. He stated he always worked his full shift and expected to stay until the shift was over. Another arena operator under surveillance became upset during his interview and said he would only leave early due to a family emergency. He admitted he occa- sionally left 10 or 15 minutes early during a shift changeover but only once or twice per month. e su- pervisor believed this operator was feeling remorseful. e report and video footage from the investigators revealed Loyst, Dervenis and the third arena operator left the earliest while others were only leaving about fi ve minutes early. Loyst was seen leaving early on four of seven shifts, leaving 23, 28, 19 and 10 minutes early. During one shift, he also washed his truck for 24 minutes and later took an 80-minute break. Dervenis was observed leav- ing early on four of his six shifts — 32, 20, 15, and 52 minutes, re- spectively. Neither he nor Loyst denied the video evidence. e third operator — who admitted leaving early a couple of times per month — was seen leaving early five times, between 14 and 25 minutes early. He was also seen leaving during his shift to go to the beer store. e city terminated Loyst and Dervenis' employment for not being truthful in their interviews. e third operator was given a fi ve-day suspension — the city's highest level of discipline short of termination — because the city considered him to have come clean and shown remorse in his interview. Loyst and Dervenis grieved their terminations, with Loyst apologizing, saying he loved his job and leaving early "just be- came a habit." Dervenis claimed he had been told years before that if he was done his work, he could leave early. He said didn't recall the supervisor's reminders to stay to the end of his shift and claimed in the interview he didn't under- stand what the supervisor meant by "leaving early." e arbitrator noted "honesty is a foundational pillar of the em- ployment relationship" and it would be diffi cult to continue the relationship without trust. In par- ticular, honesty when confronted with misconduct is key to deter- mining whether the employee takes responsibility or may engage in similar behaviour again. ere was no premeditated at- tempt to deceive the city and they didn't take steps to hide their leav- ing early, said the arbitrator. ere was also no evidence they left be- fore their duties were completed. Both testifi ed they had seen other operators leaving early, so it was likely a widespread practice. ough both men had an in- stance of previous discipline, Loyst's was only a written warn- ing and was for not taking com- pressor readings when he was supposed to. Dervenis had re- ceived a more serious one-day suspension and was clearly told it was for not being available to assist a customer and being miss- ing for two hours. e arbitrator also found Der- venis didn't accept responsibility for his misconduct as he tried to deflect the blame, while Loyst apologized and admitted to what he had done. As a result, the ar- bitrator determined Loyst should be disciplined similarly to the third operator who was only sus- pended, while the employment relationship with Dervenis was damaged beyond repair. e city was ordered to rein- state Loyst with the time since his dismissal serving as a suspension, under the condition that any further dishonesty-related mis- conduct in the subsequent 18 months would justify termina- tion. Dervenis' termination was upheld. For more information: See Kingston (City) and CUPE, Local 109 (Loyst), Re, 2016 Car- swellOnt 5512 (Ont. Arb.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. Credit: Ritu Manoj Jethani (Shutterstock)

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