Two arena operators in Kingston, Ontario were terminated by the
City for time theft, and when the Union grieved on their behalf,
one was reinstated even though he lied during the City's
investigation into his time theft!
In 2015, the City received a complaint from a customer that no
arena operators were able to be contacted during operating hours.
The City determined that it would investigate whether its employees
were engaging in time theft by overstaying breaks or leaving work
early. It obtained video evidence over a 14 day period, and then
held interviews with the employees.
Mr. Loyst maintained that he had never left the workplace early,
nor had he seen anyone leave early or leave the workplace for
breaks – which was also prohibited. Mr. Dervenis stated that
he always worked a full shift unless he was instructed to go home
early by a supervisor, or unless there was a family emergency.
They were lying.
Videos from the investigation revealed that each of Mr. Loyst
and Mr. Dervenis routinely left work early. Mr. Loyst was observed
leaving anywhere between 10-28 minutes early, and taking 80 minute
long breaks. Mr. Devenis was observed leaving work early by between
15 and 52 minutes.
While the time theft was a serious matter, the City relied
heavily on their dishonesty during the investigation interview in
deciding to terminate each of Mr. Loyst and Mr. Dervenis.
The Union did not dispute that this conduct warranted
discipline, and did not seek back pay for the grievors. However,
they did ask the arbitrator to reinstate them to their
At the hearing, Mr. Loyst apologized and informed the arbitrator
that he loved his job and leaving early just became a habit for
him. On the other hand, Mr. Dervenis stated that he was leaving
early because years earlier he was informed that he could. He
denied being informed that employees were not permitted to leave
The Arbitrator's decision focused extensively on the issue
of dishonesty. In his decision, he noted both that "there is
no doubt that honesty is a foundational pillar of the employment
relationship", and "that trust based offences are treated
seriously by employers and arbitrators. When an employee abuses the
trust placed in him or her by his or her employer, it undermines,
and may destroy, the foundation of the employment
The Arbitrator noted also that the City chose not to terminate
the employment of a third employee engaged in similar misconduct,
for the stated reason that he was honest and forthcoming about what
he did when interviewed by the employer. Given that, the Arbitrator
decided that if the grievors could be trusted to come back to work
with the requisite level of honesty, they ought to be
And so, Mr. Loyst was reinstated to work. The arbitrator
identified Mr. Loyst's length of seniority, relatively clean
discipline record, and genuine remorse at hearing, as mitigating
factors that justified reinstatement. Mr. Dervenis however, had
refused to accept responsibility for his actions and showed no
contrition whatsoever. The Arbitrator refused to interfere with the
City's decision to terminate Mr. Dervenis for just cause.
This decision is just another in a long line of discipline cases
where the central theme is the dishonesty of an employee. In cases
where an employee's dishonest conduct is enough to irreparably
damage the employment relationship, termination is the historically
presumed outcome. But the issue of "irreparable damage"
is not always clear cut.
As the City of Kingston learned in this case, two seemingly
similar cases can have two very different results.
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