The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian Smeenk

Determining the legitimacy of an employee’s illness is a tricky situation for employers across the country. The Alberta Court of Queen’s Bench recently took a firm stance on the abuse of sick leave and found in favour of the employer in Telus Communications Inc. v. Telecommunications Workers' Union - Telus was correct in firing an employee who said he was too sick to go to work but well enough to play in a softball tournament. The Court even declined to take the usual step of sending the matter back for a new arbitration hearing.

Background

Jarrod Underwood is a member of the Telecommunications Workers’ Union. He was employed by Telus Communications as a service technician in Fort McMurray. In that position, he installed and serviced Telus equipment at customers’ homes and businesses, largely without any direct supervision.

In June 2011, Mr. Underwood asked to have July 3, 2011 off work to play in a slo-pitch tournament. The request was denied because there were no other technicians available that day to complete the scheduled work.

On the morning of the tournament, Mr. Underwood texted his manager saying he was unable to work due to “unforeseen circumstances”. Suspicious, Mr. Underwood’s manager went to the location of the tournament and observed Mr. Underwood pitching. The manager confronted Mr. Underwood at a meeting the following day, where Mr. Underwood maintained that he had woken up with a severe case of diarrhea which persisted into the morning. He asserted that he was still sick on the day of the tournament, but was able to manage his illness at the ball park and would have been unable to do so at a customer’s home.

As a result of the incident, Telus terminated Mr. Underwood’s employment.

Arbitration Decision

The Union grieved the termination and the matter proceeded to arbitration.

The Arbitrator determined that Mr. Underwood’s termination was not warranted and ordered that he be reinstated and given a one-month suspension. Telus sought judicial review of this decision at the Court of Queen’s Bench.

Judicial Review

On judicial review, the Court sided with the employer. An employee who was too sick to work but could still pitch in a softball game “defied logic and common sense”. While the Court appreciated that attending at customers’ homes and businesses while suffering from diarrhea might “carry with it some awkwardness”, it was unreasonable that the problem could be so severe to merit missing work, yet be manageable at the softball field.

Further, the Court declined to take the usual step of remitting the matter back to an arbitrator for a new arbitration. The Court determined that the only reasonable conclusion on the evidence in this matter was that Mr. Underwood lied about being sick, and therefore, his termination was justified. Remitting the matter to a different arbitrator to arrive at the only reasonable conclusion served no useful purpose. Consequently, the Arbitrator’s award was quashed and the termination was upheld.

Good News for Employers

This is a positive decision for employers across Canada. It recognizes that parsing sick leave to the extent that an employee can be well enough to play but too sick to work is an impractical standard. It may also represent a willingness by the courts to resolve matters on judicial review instead of remitting matters for re-adjudication, saving the employer the time and expense of revisiting the case a second time. Only time will tell if courts in other provinces take similar steps.