The grievor had been denied a request for a day off from his job as a service technician for Telus Communications Inc. ("Telus") to participate in a slo-pitch tournament. On the morning of the tournament, the grievor informed his manager that he would not be reporting to work "due to unforeseen circumstances". Suspicious, the manager went to the location of the tournament and witnessed the grievor pitching.

At a subsequent investigative meeting, the grievor explained that, while he had been unable to attend work due to a severe case of diarrhea, he was able to manage his illness at the ball park. The grievor initially asserted that he had only been at the ball park to watch the tournament. Upon being confronted by his manager about his presence on the pitching mound, the grievor changed his story and asserted that he had only been pitching and not batting. Following this admission, the grievor was terminated.

At arbitration, the grievor was reinstated. The arbitrator held that while he could appreciate the "indignation of Telus", the grievor's account of his illness was plausible and Telus had not presented any evidence demonstrating that the grievor had not, in fact, been too ill to report to work the day of the tournament.

On judicial review, the chambers judge held that the approach taken by the arbitrator was unreasonable in that it required Telus to prove the grievor was not sick and the arbitrator accepted the testimony of the grievor related to his illness despite questioning his credibility as a witness.

The chambers judge quashed the arbitrator's decision and concluded that remitting the matter to a different arbitrator to arrive at the only reasonable conclusion, that the grievor lied and must be terminated, would serve no useful purpose.

On appeal, the Alberta Court of Appeal upheld the chambers judge's decision and reiterated that the arbitrator unreasonably failed to balance the grievor's testimony with the circumstantial evidence that he had lied. The Alberta Court of Appeal also held that, while it is not typical, the chambers judge had the discretion not to send the matter back to the arbitrator where only one interpretation of the evidence was possible and any other result would be unreasonable. Given that the chambers judge concluded that that the grievor had lied about being sick, the Court of Appeal held that termination was the only reasonable outcome.

This case is supportive of "just cause" termination for dishonest conduct. While the reasoning is consistent with previous case law, it reinforces the legal foundation for just cause where employees are deceptive. It also provides an interesting example of a reviewing court questioning factual as well as legal findings of an arbitrator, including those related to credibility. Normally, reviewing courts are highly deferential to findings of credibility made by arbitrators. However, in this case the overall circumstances were found to justify the judge's conclusion that deception had occurred and that the only only plausible outcome was termination.

Note: This a reprint of an article by Michael Torrance of Rose Fulbright Canada LLP.