A recent decision from Alberta’s Court of Queen’s Bench quashed a reinstatement award and re-instituted the termination of an employee who alleged he was too sick to attend work, but was caught playing in a softball tournament.  The Telus Communications Inc. v. Telecommunications Workers Union decision is positive for employers in that it takes a hard line on abuse of sick leave and upheld the employer’s discipline instead of taking the usual step of remitting the matter for a new hearing. 

The facts that came out at arbitration were

  • The grievor was employed by Telus as a service technician in Fort McMurray where in installed and serviced equipment at homes and businesses of customers. In this position, he worked largely unsupervised.
  • A month before a slo-pitch tournament he requested the day off. The request was denied because no other technicians were available to complete the scheduled work that day.
  • On the day of the tournament itself, the grievor texted his manager saying he was unable to make it to work due to “unforeseen circumstances”.
  • This raised the manager’s suspicions and, as a result, he went to the tournament location and observed the grievor pitching.
  • The next day the grievor was confronted at a meeting where he maintained that he had woken up during the night with a severe case of diarrhea that persisted throughout the morning.
  • Initially, he admitted only to having gone to the ballpark to watch, but later changed his story to claim that he had been pitching only, not batting. He claimed he could manage his illness at the ballpark, but would not have been able to manage at the homes of customers.

Arbitrator Beattie allowed the grievance and substituted a one-month suspension.  Telus sought judicial review of the arbitrator’s decision on the basis of “reasonableness”.

What happened at judicial review?

Justice McCarthy held that the award was unreasonable because the only evidence supporting the grievor’s story was his own testimony, whereas all other evidence pointed away from that conclusion.  While the court noted that not every illness that justifies an employee’s absence must involve total incapacity, the arbitrator’s conclusion that the grievor was too sick to work, but well enough to play baseball was unreasonable in the circumstances: 

I take the Union’s point that not every illness that requires an employee to miss work will render that employee entirely incapacitated.  One likely would not quarrel with an employee who missed work because of illness but got out of bed to read or watch television.  Nevertheless, I am of the view that the conclusion that an employee who is too sick to work could still pitch in a baseball game defies logic and common sense.

Further, while I can appreciate that attending at customers’ homes and businesses while suffering from diarrhea might carry with it some awkwardness, it seems to me unreasonable to conclude that the problem could be so severe as to merit missing work, yet be manageable from the pitcher’s mound.

Parsing sick leave to this extent creates an unworkable standard and is therefore unreasonable.

With respect to the appropriate remedy, Justice McCarthy departed from the more conventional practice of remitting an unreasonable award for re-hearing, opting instead to accept the employer’s position that there was only one possible reasonable outcome in the circumstances and it was therefore impractical for another arbitrator to re-hear the matter: 

What this Means for You: 

This is a good case for employers.  Abuse of sick leave continues to be a live issue in the workplace and the decision confirms for employers that more evidence than the grievor’s word may be required when there are doubts about the legitimacy of an illness. 

The court’s substitution of the appropriate penalty is also positive for employers.  Challenging a decision on the standard of reasonableness is expensive and onerous.  The decision to quash the award without a re-hearing is a welcome relief to employers seeking judicial review of arbitration awards.