A recent decision out of the Alberta Court of Appeal upheld the dismissal of an employee for behaving dishonestly towards his employer.
At issue in Telus Communications Inc. v. Telecommunications Workers Union was the dismissal of an employee who had called in sick in order to play in a softball tournament and then repeatedly lied when his employer caught him in the act.
The employee had previously asked his employer, Telus, for a day off so that he could participate in the tournament; however, his request had been denied because there was no one who could cover his shift that day. On the morning of the day in question, the employee texted his manager saying he could not come into work “due to unforeseen circumstances”. Suspicious, his manager went down to the park and witnessed the “sick” employee pitching in the game.
At a meeting with the manager the next day, the employee stated that he had been sick and denied attending the game; he then admitted to going to watch but denied playing. Then, when confronted about the fact that his employer saw him play, he said he had played but had only been able to pitch due to his illness. As a result of his dishonesty, Telus terminated his employment.
The union grieved the discharge, and at arbitration the employee was reinstated. The rationale for this decision was that the relationship of trust with the employer was reparable, and that the employee’s story had been “plausible” as the employer had no concrete evidence that he had not really been sick.
This decision was ultimately set aside by the appellate court. The finding that an employee could be “too sick to work yet not sick enough to skip softball” was found to be an unreasonable interpretation of sick leave provisions. Furthermore, based on the manager’s testimony, it was established the relationship of trust between the employer and employee had been irreparably damaged by his repeated dishonesty.
This decision was somewhat unusual, as the Court set aside the arbitrator’s decision altogether, rather than having the issue be reconsidered at arbitration. While there should be significant deference shown to arbitrators, the Court emphasized (and exercised) its role of protecting litigants against unreasonable decisions such as this one.
The message coming out of this decision is that employees taking advantage of sick leave and, perhaps more significantly, behaving dishonestly after the fact, might well be seen as damaging their relationship with their employer to such a degree that immediate dismissal is justified.
Written by: Marty Rabinovitch and Michelle Stephenson, Summer Law Student