In Telus Communications Inc. v.
Telecommunications Workers' Union, 2013 ABQB 355, the
court upheld the termination of a grievor who claimed that he had
been too sick to attend work in client's homes but had been
able to effectively manage his symptoms on the baseball field. The
arbitrator hearing the termination grievance had substituted a
one-month suspension for the dismissal. On judicial review, the
reviewing court held that the only reasonable conclusion on the
evidence was that the grievor had lied about being sick and that
termination was warranted. There was no reason to remit the matter
to another arbitrator, given that finding. In Telus Communications Inc. v Telecommunications
Workers Union, 2014 ABCA 199, a majority of the Alberta
Court of Appeal upheld all aspects of the lower court's
decision. It held that the evidence before the arbitrator supported
the finding that the grievor was untruthful at the hearing. The
arbitrator had erred in failing to consider all of the evidence and
in failing to address the grievor's credibility. The arbitrator
had also erred in imposing an onus on the employer to prove that
the grievor was not sick and in considering or failing to consider
numerous other factors. In particular, he ignored evidence that the
trust relationship between the employer and the grievor was
irretrievably broken, overlooked the level of trust required of an
employee in the grievor's position and failed to follow case
law supporting the notion that reinstatement was not appropriate in
cases of protracted dishonesty. The Court also held that the lower
court had not erred in substituting a termination for the
suspension without remitting the matter for rehearing. Where the
facts before the tribunal led to only one reasonable result, as
they did in this case, no useful purpose was served by remitting
the matter back to arbitration. Justin Martin, concurring in the
result, would have dismissed the appeal solely on the basis of the
grievor's untruthfulness to his employer and his false
testimony at the arbitration hearing.
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