Case Note: On playing baseball while on sick leave

In Telus Communications Inc. v. Telecommunications Workers’ Union, 2013 ABQB 355, the court upheld the termination of a grievor who claimed that he had been too sick to attend work in client’s homes but had been able to effectively manage his symptoms on the baseball field. The arbitrator hearing the termination grievance had substituted a one-month suspension for the dismissal. On judicial review, the reviewing court held that the only reasonable conclusion on the evidence was that the grievor had lied about being sick and that termination was warranted. There was no reason to remit the matter to another arbitrator, given that finding.

In Telus Communications Inc. v Telecommunications Workers Union, 2014 ABCA 199, a majority of the Alberta Court of Appeal upheld all aspects of the lower court’s decision. It held that the evidence before the arbitrator supported the finding that the grievor was untruthful at the hearing. The arbitrator had erred in failing to consider all of the evidence and in failing to address the grievor’s credibility. The arbitrator had also erred in imposing an onus on the employer to prove that the grievor was not sick and in considering or failing to consider numerous other factors. In particular, he ignored evidence that the trust relationship between the employer and the grievor was irretrievably broken, overlooked the level of trust required of an employee in the grievor’s position and failed to follow case law supporting the notion that reinstatement was not appropriate in cases of protracted dishonesty.

The Court also held that the lower court had not erred in substituting a termination for the suspension without remitting the matter for rehearing. Where the facts before the tribunal led to only one reasonable result, as they did in this case, no useful purpose was served by remitting the matter back to arbitration.

Justin Martin, concurring in the result, would have dismissed the appeal solely on the basis of the grievor’s untruthfulness to his employer and his false testimony at the arbitration hearing.