Canada: "Take Me Out To The Ball Game": Too Sick To Work, But Able To Play Softball? Strike Two!

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 suspension.

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 ultimate result.

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 seriously.

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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