AB Court: Too sick to work = too sick to play softball

[The Bread Guy]

This from an online legal beagle publication ....

Determining the legitimacy of an employee’s illness is a tricky situation for employers across the country. The Alberta Court of Queen’s Bench recently took a firm stance on the abuse of sick leave and found in favour of the employer in Telus Communications Inc. v. Telecommunications Workers' Union  - Telus was correct in firing an employee who said he was too sick to go to work but well enough to play in a softball tournament. The Court even declined to take the usual step of sending the matter back for a new arbitration hearing. 

Background

Jarrod Underwood is a member of the Telecommunications Workers’ Union. He was employed by Telus Communications as a service technician in Fort McMurray. In that position, he installed and serviced Telus equipment at customers’ homes and businesses, largely without any direct supervision.

In June 2011, Mr. Underwood asked to have July 3, 2011 off work to play in a slo-pitch tournament. The request was denied because there were no other technicians available that day to complete the scheduled work.

On the morning of the tournament, Mr. Underwood texted his manager saying he was unable to work due to “unforeseen circumstances”. Suspicious, Mr. Underwood’s manager went to the location of the tournament and observed Mr. Underwood pitching. The manager confronted Mr. Underwood at a meeting the following day, where Mr. Underwood maintained that he had woken up with a severe case of diarrhea which persisted into the morning. He asserted that he was still sick on the day of the tournament, but was able to manage his illness at the ball park and would have been unable to do so at a customer’s home.

As a result of the incident, Telus terminated Mr. Underwood’s employment.

Arbitration Decision

The Union grieved the termination and the matter proceeded to arbitration.

The Arbitrator determined that Mr. Underwood’s termination was not warranted and ordered that he be reinstated and given a one-month suspension. Telus sought judicial review of this decision at the Court of Queen’s Bench. 

Judicial Review

On judicial review, the Court sided with the employer. An employee who was too sick to work but could still pitch in a softball game “defied logic and common sense”. While the Court appreciated that attending at customers’ homes and businesses while suffering from diarrhea might “carry with it some awkwardness”, it was unreasonable that the problem could be so severe to merit missing work, yet be manageable at the softball field.

Further, the Court declined to take the usual step of remitting the matter back to an arbitrator for a new arbitration. The Court determined that the only reasonable conclusion on the evidence in this matter was that Mr. Underwood lied about being sick, and therefore, his termination was justified .....

 

[Bruce Monkhouse]

Like I keep harping about to those who say the Unions have "too much power"..........when management actually does due diligence, and has all their ducks in a row, then..... :shooter:

 

[The Bread Guy]

Like I keep harping about to those who say the Unions have "too much power"..........when management actually does due diligence, and has all their ducks in a row, then..... :shooter:

Sounds like unions sometimes get hit because management doesn't do enough to get all their ducks in a row.

 

[Colin Parkinson]

I have been to a few Union-management meetings where the shop steward has said "I wish there was a way to get rid of this employee" Often the union is forced to defend someone they know is a useless turd or a scumball due to their legal commitments. My management course focused quite a bit on letting go employees. Likely due to the fact it was taught by a CBSA RD who relayed some rather disturbing stories of conduct by employees on duty and his experience in firing them. We were looking to let go any employee here and our HR seemed bound and determined to thwart us at every turn. The managers are willing to do it, but it seems for the most part senior staff are unwilling to take the risks involved. 

 

[mariomike]

In addition to not doing what he did, some good advice here. The 2008 suspension still in in his HR jacket surely did not help his 2011 grievance.

"He had a previous three-day suspension in April, 2008 for drinking beer in a company vehicle. (He was entitled, under a sunset clause, to have it removed but had not made the request.)"

Edit second sentence.

 

[Pat in Halifax]

Have a look at the CMs. There was one recently in Halifax involving a student at the Fleet School-similar situation-HEAVY fine.

 

[Halifax Tar]

Sounds like unions sometimes get hit because management doesn't do enough to get all their ducks in a row.

I think you hit the nail on the head milnews.  In 13 years I have only seen one civilian fired from DND and that was at my current unit, which was meticulous in documenting and organizing to make it happen.  Having said that I think perhaps there are too many hoops to jump through and it shouldn't take years to be ride of dead weight.  This particular miscreant had managed stick around well after his "best before date" thanks to his unions efforts.


Too the original post Its nice to see some people still think "if your too sick to work your too sick for sports".  This gets abused way to much by some of theCF "Athletic Scholarship Soldiers".  Example 1) Member A has a chit to avoid ruck marches and organized PT; but yup still good for intersection softball and golf afternoons.  Example 2) I worked with a guy who would pop his head out the stores office window on HMCS Toronto and watch us carry pallets of 50lbs bags of potatoes down to the potato locker claiming he had a bad back.  Then he would put in to play on the ships hockey team and do all kinds of marathons. 

 

[medicineman]

You'd be surprised at how many people will look me in the eye after bitching about their back and such, and after getting light duties for no rucking, etc, and have the gall to ask for the chit to say they can play hockey, soccer, basketball, etc.  I tell them if they're too sick or sore to do routine PT with everyone else, they can't do sports either...and then I'd deliberatly add no sports to the chit.

Sometimes I'd also suggest they go look up "malingering" in the National Defence Act  :nod:

MM

 

[Halifax Tar]

You'd be surprised at how many people will look me in the eye after bitching about their back and such, and after getting light duties for no rucking, etc, and have the gall to ask for the chit to say they can play hockey, soccer, basketball, etc.  I tell them if they're too sick or sore to do routine PT with everyone else, they can't do sports either...and then I'd deliberatly add no sports to the chit.

Sometimes I'd also suggest they go look up  in the National Defence Act  :nod:

MM

Need more like you MM! And as far as I am concerned "malingering" is term we use too little!

 

[medicineman]

Need more like you MM! And as far as I am concerned "malingering" is term we use too little!

Agreed...maybe if people in the military had to pay for sick notes like I can charge my civilian patients, they'd think twice about coming in asking for time off for dubious complaints.  However, in that vein, I almost never make people pay for that, since they seem to think if they're paying, they'll get what they want said, as opposed to what I think it should say.  My favourite chit was for "Sick in Quarters" - protected the patient from retarded inspections and such, but also grounded malingerers for things other than prescribed on the chit.  Win for the really sick person, win for the system if the person was a shirker looking for some undeserved time off.

MM