Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends for 30 minutes. ey were entitled to two 15-minute paid breaks and a 30-minute un- paid lunch break. ey were allowed to leave the arena for lunch or coffee, but needed permission from a supervisor to do so. In 2013, a new supervisor held meetings with employees to advise them they were ex- pected to stay at work for their entire shift. Someone asked if they could leave five min- utes early if everything was done but the su- pervisor said no. In January 2015, he reiter- ated this policy in an email to all staff. On May 12, 2015, the city received a com- plaint from a customer who had rented the sports field adjacent to the Invista Centre a few days earlier. e customer had made three requests at the arena's reception desk to turn on the lights for the field, but the lights remained off and reception was unable to contact the arena operators. e supervisor conducted an investiga- tion into the incident and learned Dervenis and another employee were on duty that night. Dervenis said he had been perform- ing 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 ac- cept Dervenis' explanation as he had been unavailable 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 field, 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 previous discipline on their records. Another employee had complained ear- lier about arena operators leaving their shifts early, so the city decided to place them under surveillance. Investigators observed and re- corded the exterior of the Invista Centre for 14 days in late May and early June. After the surveillance was complete, Loyst was placed on paid suspension pending in- vestigation. A few days later, he was told to come to a meeting on June 19. Dervenis and several other arena operators were also in- terviewed separately 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 workplace early and hadn't seen anyone else doing it. Dervenis said he would only leave early if a supervisor asked him to or there was a family emergency. He stated that he always worked his full shift and expected to stay un- til the shift was over. Another arena operator was upset dur- ing his interview and said he would only leave early due to a family emergency. is operator admitted he occasionally 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 about his conduct. e report and video footage from the investigators revealed Loyst, Dervenis, and the third arena operator left earliest and others were only leaving about five minutes early. Loyst was seen leaving early on four of the seven shifts he was observed on, leaving 23 minutes, 28 minutes, 19 minutes, and 10 minutes early. During one shift, he also washed his truck in the zamboni bay for 24 minutes and later took an 80-minute break. Dervenis was observed leaving early on four of his six shifts — 32, 20, 15, and 52 minutes, respectively. Neither he nor Loyst denied the video evidence. e third opera- tor — 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's and Dervenis' employment for not being truthful in their interviews. e third operator was given a five-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 termi- nations, with Loyst apologizing, saying he loved his job and leaving early "just became 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 su- pervisor's reminders to stay to the end of his shift and claimed in the interview he didn't understand what the supervisor meant by "leaving early." e arbitrator noted that "honesty is a foundational pillar of the employment rela- tionship" and it would be difficult to continue the relationship without trust. In particular, honesty when confronted with misconduct is key to determining whether the employee takes responsibility or may engage in similar behaviour again, said the arbitrator. e arbitrator found there was no pre- meditated attempt to deceive the city and they didn't take steps to hide their leaving early. ere was also no evidence they left before their duties were completed. Both Loyst and Dervenis testified they had seen other operators leaving early, so it was likely there was a widespread practice of doing so, as evidenced by the surveillance. ough both men had an instance of previous discipline, Loyst's was only a writ- ten warning. Dervenis had received a more serious one-day suspension and was clearly told it was for not being available to assist a customer and being missing for two hours. e arbitrator also found Dervenis didn't accept responsibility for his misconduct since he tried to deflect the blame, while Loyst apologized and admitted to what he had done. As a result, the arbitrator deter- mined Loyst should be disciplined similar to the third operator who was only suspended, while the employment relationship with Dervenis was damaged beyond repair. e city was ordered to reinstate Loyst with the time since his dismissal serving as a suspension, under the condition that any further dishonesty-related misconduct in the subsequent 18 months would justify termina- tion. Dervenis' termination was upheld. See Kingston (City) and CUPE, Local 109 (Loyst), Re, 2016 CarswellOnt 5512 (Ont. Arb.). 6 | June 22, 2016 Workers fired for not being truthful in investigation « from ONE on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as harassment investigations, employee terminations, drugs and alcohol in the workplace, and employee off-duty conduct. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Loyst apologized, saying he loved his job and leaving early 'just became a habit.'

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