One Strike and You’re Out: Playing Ball after Calling in Sick is Grounds for Termination

Employers are often disheartened by how difficult it can be to have labour arbitration boards or courts find that the employer had “just cause” to fire a misbehaving employee.  “Just cause” in employment law is any misconduct sufficiently serious to justify the immediate termination of the employee without prior notice or any termination or severance pay. One recent example is a case out of Alberta.  In Telus Communications v. Telecommunications Workers, the Court of Queen’s Bench overturned a labour arbitrator’s decision finding the termination to be unjustified and requiring reinstatement of the employee. So, what did the employee do to set off this protracted round of legal battling around his employment?  He called in sick, but was then spotted by his suspicious supervisor playing softball.  When confronted the next day, he continued to assert that he was too sick to work.  He said he had a severe case of diarrhea that could be managed at the ballpark, but not in client’s homes where he would be required to work. The employer didn’t buy it and fired the employee. A labour arbitrator found this to be an unjustified punishment and ordered the employee reinstated, subject to a one-month suspension. On Judicial Review, the Court of Queen’s Bench concluded: …on the evidence before him, the Arbitrator could not reasonably have arrived at the conclusion that the Grievor was sick. The only reasonable conclusion on the evidence is that the Grievor lied about being sick and that his termination was justified. Remitting this matter to a different arbitrator to arrive at the only reasonable conclusion serves no useful purpose. As a result, the employee’s termination was upheld as justified.