By Graeme McFarlane

The Alberta Court of Appeal has supported the lower court’s decision to uphold an employer’s decision to terminate an employee rather than sending the case to arbitration. Although this was an unusual result, the Court held that in doing so, it was not usurping the Arbitrator’s function in these circumstances. The court’s job, in part, is to protect participants and the administrative process from unreasonable decisions.

In this case, the grievor’s extreme dishonesty could result in no other outcome but termination. The grievor was employed as a service technician for Telus in Fort McMurray. His discipline record reflected a previous three day suspension for consuming alcohol in a company vehicle while working.

Not Playing Fair Ball
The grievor requested a day off to play in a baseball tournament. That request was refused because the company did not have any other employees available to cover his shift. On the day in question, the grievor sent in a text message saying that he was unable to work “due to unforeseen circumstances.” The company was suspicious of this response especially in light of the grievor’s request for the day off. A manager went to the ballpark and observed the grievor pitching at approximately 11:45 AM. The manager left without speaking with the grievor.

The following day, the grievor returned to work and was called into a meeting. When asked about his absence, he stated that he had been suffering from severe diarrhea and spent the morning in bed. He admitted that he had gone to the ballpark, but he was only there to watch not play. The grievor said that he himself had booked an appointment and suggested that he would not have done so had he intended to book off sick. When it was suggested to the grievor that he could have worked but chose not to, the grievor asked who had told the company. When confronted with the fact that he had been seen playing baseball, the grievor said that he had only been pitching and had not batted.

More Than Minor Discipline Required
The grievor was terminated and the Union brought the case to arbitration. The arbitrator reinstated the grievor noting that the company had “no evidence that [the grievor] had not been sick” and that the grievor’s story “was plausible.” The arbitrator accepted that the grievor had lied, but found that the grievor was “contrite and does feel remorse.”

The arbitrator concluded that it was possible to re-establish the trust relationship if reinstatement was ordered. However, the grievor’s dishonesty deserved more than minor discipline and a one month suspension was substituted for the termination.

Discharge Upheld, Appealed by Union
Telus brought an application for judicial review of the arbitrator’s decision. The court set aside the award and the discharge was upheld. The judge applied the reasonableness standard and found that neither the rationale or the result of the arbitrator’s decision fell within the range of possible, acceptable outcomes.

The arbitrator did not properly consider the evidence about whether the grievor had lied about being sick. If the evidence had been analyzed properly, the only reasonable conclusion that could be drawn was that the grievor was not sick and as a result, discharge had to follow. Accordingly, there was nothing to gain by sending the case back to the arbitrator for a rehearing, and the company’s decision to discharge the grievor was upheld.

The Union appealed the court’s decision on two grounds. First, whether the reasonableness standard was correctly applied by the judge, and second, was the judge able to uphold the termination without sending the case back to the arbitrator.

The Reasonableness Standard
In answering the first question, the court applied the reasoning in the Supreme Court of Canada’s decision in Law Society of New Brunswick v. Ryan. The reasonableness standard requires analysis of whether the decision under review “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.”

When applying this analysis, the court found that the arbitrator’s analysis was completely misguided. Instead of allowing the evidence to decide the central issue of the whether the grievor had falsely called in sick, the arbitrator focused on the employer’s failure to bring evidence to prove that the grievor was not sick. The court continued to say that there were many factors the weighed heavily against the grievor’s credibility and these factors were not properly considered. As a result, the arbitrator’s decision was not reasonable and should be set aside.

Dishonesty Destroys Trust
The appeal court also held that it would have been pointless to remit the matter back to the arbitrator. The court said that had the analysis been properly performed the arbitrator should have found that the grievor lied about being sick in order to play baseball when his request for time off was denied.

Given the grievor’s subsequent behaviour of continuing to lie both during the investigation and during the arbitration hearing, the trust relationship was destroyed. Therefore, termination was the only realistic outcome and it should not have been sent back. The lower court’s decision in this regard was consistent with the authorities, public policy and court’s supervisory function in the administrative process.

This will be a helpful decision for employers who must deal with a dishonest employee. It is strong authority for the proposition that it is not the employer’s job to “disprove” an employee’s false statement. Rather, it may make a reasoned decision based on all of the evidence it gains during an investigation. It is the arbitrator’s job to do the same thing.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace issues.

(PeopleTalk Winter 2014)