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Batter Up: Judicial Replacement of a Labour Arbitrator’s Award

February 11th, 2015   Authored by Colin Harris

Telus Communications Inc. v. Telecommunications Workers Union, 2014 ABCA 199, is a recent Alberta Court of Appeal decision addressing the just cause termination of an employee, the amount of deference that a reviewing court must give to a labour arbitration decision, and the issue of when a reviewing court may replace a labour arbitrator’s award.

In the case, the Alberta Court of Appeal dismissed an appeal from a Queen’s Bench decision (2013 ABQB 355) quashing a labour arbitration award and resulting remedy.

The decision concerned a Telus employee who asked for a day off to play in a slo-pitch tournament. His request was denied due to staffing concerns. Shortly before his shift began on the requested day, he informed his manager via text message that he could not attend work due to unforeseen circumstances. The manager went to the ball park later that morning and found the employee pitching.

At a subsequent investigative meeting, the employee initially said that he was ill. When questioned further, he admitted to being at the ball park, but stated that he was able to manage his symptoms there (which he could not have done at a customer’s home). He asserted that he was at the park to watch, not play. He later said that he was only pitching, not batting.

Telus ultimately terminated the employee. The Union grieved the termination.

The arbitrator found that the employee’s account of his illness and his explanation of being able to manage his illness at the ball park was plausible, and that Telus had no evidence that he was not sick. Though the employee’s lies about playing ball were misguided and demonstrative of bad judgment, he was remorseful, and his lies did not have significant impact. The arbitrator did not see sufficient reason to conclude that the trust between Telus and the employee could not be re-established if he were reinstated, so the arbitrator substituted a one-month suspension for the termination.

On judicial review, Justice J.T. McCarthy quashed the arbitrator’s conclusion and upheld the employee’s termination.

Writing for the majority, Justices O’Ferrall and Veldhuis of the Court of Appeal recognized that, generally, a reviewing court must afford deference to an arbitration award under a collective agreement and review it on a standard of reasonableness. If the court determines that the arbitrator’s decision was unreasonable, the matter must in theory be sent back for a re-hearing. However, the court has discretion to not do so where the facts lead to only one reasonable result.

The majority agreed with the reviewing justice that it was unreasonable for the arbitrator to require Telus to prove that the employee was sick. The arbitrator erred in not considering all available evidence and by not conducting a thorough assessment of the employee’s credibility. Further, the arbitrator’s finding that the employee’s conduct did not have significant impact was not supported by the evidence, given that the employee himself acknowledged that his trust relationship with Telus had been broken and that his actions negatively impacted customer service. Reinstatement was an unreasonable remedy, as it failed to consider relevant factors such as Telus’ evidence that its trust relationship with the employee was irreparably damaged. Termination was the only reasonable outcome.

Consequently, the majority concluded that the reviewing justice was correct in overturning the arbitrator’s decision and upholding the employee’s termination.