You may recall our blog last year,
"Take me out to the ball game": Too sick to work,
but able to play softball? that dealt with a
telecommunications employee alleging he was too sick to work, but
was then observed playing in a slow-pitch softball tournament on
the same day he called in sick. When confronted about his
absence, the grievor maintained that he had a severe case of
diarrhea that he could manage at the softball field, but not at
customers' houses. He further maintained that he did not
play softball, but when confronted, he changed his story to confirm
that he had been pitching only, not batting. The Arbitrator
determined that while his behaviour was deserving of discipline,
his termination should be suspended with a one-month
We reported on the Alberta Court of Queen's Bench decision
that allowed Telus' application for judicial review of the
Arbitrator's finding. In a rare decision, that Court set
aside the Arbitrator's award and upheld the discipline on the
basis that the Arbitrator's award did not fall within a range
of reasonable, possible or acceptable outcomes in its reasoning or
The Union appealed to the Alberta Court of Appeal who recently
dismissed the appeal, though for different reasons. The
Majority held that the arbitrator's process did not meet the
reasonableness standard as the Arbitrator focused unreasonably on
the employer's failure to lead evidence that the grievor was
not truly sick. They further stressed that an assessment of
all the evidence was required to consider the credibility of the
grievor. The Majority recognized that not all illnesses
preventing an employee from attending work require total incapacity
for all activities; however, the finding that an employee can be
too sick to attend work, but well enough to play softball was not a
reasonable interpretation of sick leave provisions.
While concurring in the result, the Minority found that the
appeal should have been dismissed entirely on the basis of the
grievor's lack of credibility. Although arbitrators are
entitled to substantial deference, in this case, the grievor lied
repeatedly including during the hearing.
What this Means for Employers:
Like the Court of Queen's Bench decision, this is a good
case for employers. Although substituting a specific penalty
is a rare step, the Court of Appeal decision affirms that
termination was the only possible outcome and that the decision of
the Arbitrator was unreasonable. Further, this case
demonstrates the seriousness of violations of sick-time policies
and that abuse of sick-leave provisions will not be tolerated.
Although the facts of this case are particularly egregious
and unique, employers can expect this case to be relied upon where
sick leave violations are at issue. While not all illnesses
preventing an employee from work leave an employee to be
bed-ridden, abuse of sick leave ought to be taken very
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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