The Alberta Court of Appeal recently upheld the decision of a chambers judge who refused to remit a dismissal grievance to an arbitrator on the basis that the grievor’s dishonesty could lead to no outcome other than termination of employment.
The grievor requested a day off from work in order to play in a softball tournament. Due to staffing coverage concerns, the employer denied his request. On the day in question, the grievor sent his manager a text message stating that “due to unforeseen circumstances”, he would be unable to work that day. Suspicious given the grievor’s prior request, the manager went to the ballpark and observed the grievor pitching in the tournament. At a meeting the following day, the grievor admitted going to the ballpark but claimed that he could manage his symptoms at the tournament but not at customer workplaces or homes. He also denied participating, and said he was there only to watch, not play. When the manager said that he saw him pitching, the grievor then said he had only been pitching, not batting. The employer terminated his employment for dishonesty.
At the grievance arbitration, the arbitrator found that the employer “over-reacted” to the grievor’s dishonesty, and reinstated the grievor, substituting a one month disciplinary suspension for the termination. The employer applied for judicial review.
The chambers judge concluded that the arbitrator’s approach was unreasonable because it required the employer to prove that the grievor was not sick. In particular, the judge found that it “defies logic and common sense” that an employee can be too sick for work but well enough to play softball. He found that the only reasonable conclusion, based on the evidence, was that the grievor had repeatedly lied about being sick. On this basis, he quashed the award and the resulting reinstatement, and upheld the termination. The union appealed, disputing both the judge’s application of the reasonableness standard of review and his decision to uphold the termination instead of remitting the matter for reconsideration by the arbitrator.
The Court of Appeal dismissed the union’s appeal. The Court found that the arbitrator’s reasoning was flawed and, on a review of the evidence, that he had failed to conduct a proper assessment of the grievor’s credibility. As a result, the majority declined to interfere with the lower court’s decision.
Although the more common remedy is to remit the matter for reconsideration by the arbitrator, this case demonstrates that courts are willing to uphold dismissals for flagrant acts of dishonesty. While adjudicators will always consider the context of the behaviour, this decision affirms that an employee’s persistent dishonesty and lack of remorse are significant factors when determining appropriate disciplinary consequences of misconduct.
Telus Communications Inc. v. Telecommunications Workers Union, [2014] ABCA 199
Questions relating to the content in this article may be directed to Fran Doyle