Northern Exposure

A slo-pitch: Playing baseball when ‘sick’ = cause for termination

by Kyla Stott-Jess

Unexpected employee absences from work can be difficult for employers. Customer service may be compromised. Others’ jobs need to be adjusted. And an employer’s trust in the employee can be damaged. So can an employer terminate an employee for lying about the reason for an absence?

Although this issue had previously been dealt with by the Alberta Court of Queen’s Bench, a recent Alberta Court of Appeal decision, Telus Communications Inc. v Telecommunications Workers Union, confirms that termination in such circumstances may be appropriate.


An employee requested a day off to participate in a slo-pitch tournament. Because of staffing concerns, his request was denied. On the morning of the tournament, the employee texted his manager to inform him he would not be attending work that day because of “unforeseen circumstances.”

Suspicions aroused, the manager attended the slo-pitch tournament. He saw the employee pitching. When the employee was later questioned about his absence, he gave severe diarrhea as the reason for his absence. The employee maintained that the diarrhea was manageable at the ballpark but would not have been manageable at a customer’s residence, which would have been required of him had he gone to work.

When pressed, the employee also stated that although he had gone to watch his slo-pitch team play in the tournament, he did not participate. Upon being confronted with the manager’s observations of him pitching, the employee then stated that he only had pitched and did not bat. The employer terminated the employee for cause. The union grieved the termination.

The arbitrator ordered the employer to reinstate the employee. The arbitrator found that the employee’s account of his illness was plausible and that the employer did not have any evidence that the employee had not been sick. Further, the employee’s absence was not unreported, and the employee was conscious of the impact on customers. Finally, the arbitrator did not find sufficient reasons to conclude that the relationship of trust between the employee and employer had been irreparably damaged.

The employer appealed to the Court of Queen’s Bench. The court quashed the arbitrator’s conclusion and upheld the employee’s termination. The court found that the arbitrator did not appropriately weigh the evidence. The only reasonable conclusion was that the employee had lied about being sick. The employee’s lies justified termination.

Court of Appeal decision

The union appealed. The Alberta Court of Appeal dismissed the appeal. The appeal court found that the arbitrator had been unreasonable in requiring the employer to prove whether or not the employee was sick. Rather, the arbitrator should himself have weighed all of the evidence and conducted a thorough assessment of the employee’s credibility. In assessing the employee’s credibility, the arbitrator should have considered whether the employee’s explanation was consistent with the overall circumstances.

The appeal court also found that the arbitrator’s decision to reinstate the employee was unreasonable. The employee’s multiple lies had caused irreparable damage to the trust relationship as well as disrupting service to the employer’s customers. Further, the employee was in a position of trust that required him to work independently and unsupervised, meaning that the trust relationship took on even greater importance.

Lessons for employers

This ruling from Alberta’s highest court is a very employer-friendly decision. It affirms that employers have “just cause” for termination where the employee has displayed dishonesty in abusing an employer’s workplace sick leave and attendance policies. It also supports employers in imposing other strong disciplinary measures on employees who abuse such policies.

For employees, this case serves as a cautionary tale: Taking unauthorized sick days and lying about it can be grounds for termination.

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