In reasons released June 19, 2014, the Alberta Court of Appeal
upheld a lower Court decision quashing labour arbitration award
(Telus Communications Inc v Telecommunications Workers
Union, 2014 ABCA 199).
The case involved an employee of TELUS Communications Inc. who had
requested a day off work to play in a softball tournament (which
was denied) only to call in sick on the day in question. Suspicious
that he was not actually sick, the Grievor's manager had
attended the ball diamonds where he witnessed the Grievor playing
baseball. When confronted, the Grievor stated that he was suffering
from a severe case of diarrhea on the day in question and was not
playing baseball. The Grievor later admitted to being at the
baseball diamonds when confronted with the fact that someone had
seen him there; however he stated that he was only watching. The
Grievor subsequently admitted to playing, but minimized his
involvement on the basis that he was "only pitching".
TELUS terminated the Grievor for cause.
The Arbitrator reinstated the Grievor and substituted
a one-month suspension for termination. According to the
Arbitrator, TELUS had no direct evidence that the Grievor was not
sick as he claimed and that his explanation regarding his absence
TELUS sought judicial review of the Arbitrator's award. It
argued that the Arbitrator had failed to consider the overall
weight of its circumstantial evidence, which pointed, irrefutably
to the fact that the Grievor had lied about being sick. It also
argued that the Arbitrator's award suggested an employee could
be too sick to work yet sufficiently well to play baseball, and
unreasonable interpretation of the sick leave provisions contained
in the party's collective agreement. TELUS argued that
termination was the only reasonable outcome on the evidence and, as
such, the Arbitrator's award should be quashed without
remitting the matter for rehearing.
The Alberta Court of Appeal determined that the Arbitrator had
acted unreasonably in requiring TELUS to lead direct evidence
establishing that the Grievor was not sick, an impossible standard.
The Arbitrator was required to weigh the circumstantial evidence
against the Grievor's testimony in order to determine whether
the Grievor had lied about being sick. As the overwhelming weight
of the evidence pointed to the fact that the Grievor had lied about
being sick, the Arbitrator's conclusion otherwise was
unreasonable. Having quashed the award, the Court declined to remit
the matter back to Arbitrator for hearing. The only reasonable
inference to be drawn on the evidence was that the Grievor had lied
about being sick, then repeatedly lied to his employer after the
fact, and at Arbitration. The Court concluded that termination was
the only reasonable outcome on the evidence and that remitting the
matter to arbitration would be pointless.
In issuing its judgment, the Court was cognizant of the fact
that Labour Arbitrators are entitled to considerable deference.
However, the Court noted its oversight rule to protect litigants
and administrative schemes from unreasonable decisions. The
chambers judge's decision to uphold termination was
"consistent with existing case law, public policy, and a
supervisory role of Courts in the administrative process" (at
The Court's decision suggests that, while very broad, an
Arbitrator's discretion is not limitless. The reinstatement of
an employee who lied about being sick in order to play baseball and
lied about it again when confronted, and then lied at Arbitration
was simply a bridge too far. Employers require the ability to
discipline employees for flagrant abuses of sick leave in order to
effectively manage their workplaces. The Courts maintain an
oversight rule where administrative bodies fail to consider the
most relevant circumstances and unreasonably interfere with these
Bennett Jones LLP was counsel to TELUS before the Court of
Appeal and in the proceedings below.
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