One employment relationship saved, another destroyed

Worker who apologized for leaving early multiple times deserves reinstatement, while other who didn’t stays fired: Arbitrator
By Jeffrey R Smith
|Canadian Employment Law Today|Last Updated: 07/06/2016

Two Ontario workers who were observed leaving work early on multiple occasions and denied it in investigative interviews have received different fates from an arbitrator.

Willie Loyst, 50, and Steve Dervenis, 50, were arena operators for the City of Kingston, Ont. Both men worked at the Invista Centre, an arena complex that contained ice pads, meeting rooms, and a fitness centre. Loyst worked full-time and Dervenis part-time at the centre, and they were responsible for operations at an adjacent sports field in addition to the arena. Duties included assisting customers who rent 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 fields.

Operators at the Invista Centre worked either a day shift or a night shift — which overlapped for 30 minutes. They were entitled to two 15-minute paid breaks and a 30-minute unpaid lunch break. They 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 expected to stay at work for their entire shift. Someone asked if they could leave five 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 received a complaint from a customer who had rented the sports field adjacent to the Invista Centre a few days earlier. The 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.

 The supervisor conducted an investigation into the incident and learned Dervenis and another employee were on duty that night. Dervenis said he had been performing other duties and didn’t have a functioning walkie-talkie with him, so he didn’t receive the call. However, the city didn’t accept 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 earlier about arena operators leaving their shifts early, so the city decided to place them under surveillance. Investigators observed and recorded 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 investigation. A few days later, he was told to come to a meeting on June 19. Dervenis and several other arena operators were also interviewed 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 until the shift was over.

Another arena operator was upset during his interview and said he would only leave early due to a family emergency. This operator admitted he occasionally left 10 or 15 minutes early during a shift changeover but only once or twice per month. The supervisor believed this operator was feeling remorseful about his conduct.

The 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. The 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.

The city terminated Loyst’s and Dervenis’ employment for not being truthful in their interviews. The 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 terminations, 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 supervisor’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.”

The arbitrator noted that “honesty is a foundational pillar of the employment relationship” 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.

The arbitrator found there was no premeditated attempt to deceive the city and they didn’t take steps to hide their leaving early. There 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.

Though both men had an instance of previous discipline, Loyst’s was only a written 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.

The 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 determined Loyst should be disciplined similar to the third operator who was only suspended, while the employment relationship with Dervenis was damaged beyond repair.

The 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 termination. Dervenis’ termination was upheld. See Kingston (City) and CUPE, Local 109 (Loyst), Re, 2016 CarswellOnt 5512 (Ont. Arb.).

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