In Telus Communications Inc. v Telecommunications
Workers Union, an Alberta Court of Queen's Bench
chambers judge quashed the decision of an arbitrator, upholding
termination of a grievor terminated for dishonesty surrounding an
absence from work. The decision was later upheld by the
Alberta Court of Appeal.
The grievor had been denied a request for a day off from his job
as a service technician for Telus Communications Inc.
("Telus") to participate in a slo-pitch tournament. On
the morning of the tournament, the grievor informed his manager
that he would not be reporting to work "due to unforeseen
circumstances". Suspicious, the manager went to the location
of the tournament and witnessed the grievor pitching.
At a subsequent investigative meeting, the grievor explained
that, while he had been unable to attend work due to a severe case
of diarrhea, he was able to manage his illness at the ball park.
The grievor initially asserted that he had only been at the ball
park to watch the tournament. Upon being confronted by his manager
about his presence on the pitching mound, the grievor changed his
story and asserted that he had only been pitching and not batting.
Following this admission, the grievor was terminated.
At arbitration, the grievor was reinstated. The arbitrator held
that while he could appreciate the "indignation of
Telus", the grievor's account of his illness was plausible
and Telus had not presented any evidence demonstrating that the
grievor had not, in fact, been too ill to report to work the day of
On judicial review, the chambers judge held that the approach
taken by the arbitrator was unreasonable in that it required Telus
to prove the grievor was not sick and the arbitrator accepted the
testimony of the grievor related to his illness despite questioning
his credibility as a witness.
The chambers judge quashed the arbitrator's decision and
concluded that remitting the matter to a different arbitrator to
arrive at the only reasonable conclusion, that the grievor lied and
must be terminated, would serve no useful purpose.
On appeal, the Alberta Court of Appeal upheld the chambers
judge's decision and reiterated that the arbitrator
unreasonably failed to balance the grievor's testimony with the
circumstantial evidence that he had lied. The Alberta Court of
Appeal also held that, while it is not typical, the chambers judge
had the discretion not to send the matter back to the arbitrator
where only one interpretation of the evidence was possible and any
other result would be unreasonable. Given that the chambers judge
concluded that that the grievor had lied about being sick, the
Court of Appeal held that termination was the only reasonable
This case is supportive of "just cause"
termination for dishonest conduct. While the reasoning is
consistent with previous case law, it reinforces the legal
foundation for just cause where employees are deceptive. It
also provides an interesting example of a reviewing court
questioning factual as well as legal findings of an arbitrator,
including those related to credibility. Normally, reviewing
courts are highly deferential to findings of credibility made by
arbitrators. However, in this case the overall circumstances were
found to justify the judge's conclusion that deception had
occurred and that the only only plausible outcome was
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide
the world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
based in over 50 cities across Europe, the United States, Canada,
Latin America, Asia, Australia, Africa, the Middle East and Central
Recognized for our industry focus, we are strong across all
the key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia,
Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South
Africa (incorporated as Deneys Reitz Inc) and Fulbright &
Jaworski LLP, each of which is a separate legal entity, are members
('the Norton Rose Fulbright members') of Norton Rose
Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein
helps coordinate the activities of the Norton Rose Fulbright
members but does not itself provide legal services to
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).