Determining the legitimacy of an employee's illness is a
tricky situation for employers across the country. The Alberta
Court of Queen's Bench recently took a firm stance on the abuse
of sick leave and found in favour of the employer in
Telus Communications Inc. v. Telecommunications Workers'
Union - Telus was correct in firing an employee who
said he was too sick to go to work but well enough to play in a
softball tournament. The Court even declined to take the usual
step of sending the matter back for a new arbitration
Jarrod Underwood is a member of the Telecommunications
Workers' Union. He was employed by Telus Communications as
a service technician in Fort McMurray. In that position, he
installed and serviced Telus equipment at customers' homes and
businesses, largely without any direct supervision.
In June 2011, Mr. Underwood asked to have July 3, 2011 off work
to play in a slo-pitch tournament. The request was denied
because there were no other technicians available that day to
complete the scheduled work.
On the morning of the tournament, Mr. Underwood texted his
manager saying he was unable to work due to "unforeseen
circumstances". Suspicious, Mr. Underwood's manager
went to the location of the tournament and observed Mr. Underwood
pitching. The manager confronted Mr. Underwood at a meeting
the following day, where Mr. Underwood maintained that he had woken
up with a severe case of diarrhea which persisted into the
morning. He asserted that he was still sick on the day of the
tournament, but was able to manage his illness at the ball park and
would have been unable to do so at a customer's home.
As a result of the incident, Telus terminated Mr.
The Union grieved the termination and the matter proceeded to
The Arbitrator determined that Mr. Underwood's termination
was not warranted and ordered that he be reinstated and given a
one-month suspension. Telus sought judicial review of this
decision at the Court of Queen's Bench.
On judicial review, the Court sided with the employer. An
employee who was too sick to work but could still pitch in a
softball game "defied logic and common sense". While
the Court appreciated that attending at customers' homes and
businesses while suffering from diarrhea might "carry with it
some awkwardness", it was unreasonable that the problem could
be so severe to merit missing work, yet be manageable at the
Further, the Court declined to take the usual step of remitting
the matter back to an arbitrator for a new arbitration. The
Court determined that the only reasonable conclusion on the
evidence in this matter was that Mr. Underwood lied about being
sick, and therefore, his termination was justified. Remitting
the matter to a different arbitrator to arrive at the only
reasonable conclusion served no useful purpose. Consequently,
the Arbitrator's award was quashed and the termination was
Good News for Employers
This is a positive decision for employers across Canada. It
recognizes that parsing sick leave to the extent that an employee
can be well enough to play but too sick to work is an impractical
standard. It may also represent a willingness by the courts to
resolve matters on judicial review instead of remitting matters for
re-adjudication, saving the employer the time and expense of
revisiting the case a second time. Only time will tell if
courts in other provinces take similar steps.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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