Sick employee caught playing slo-pitch

A technician who was fired by TELUS for allegedly faking sick must be reinstated, an Alberta arbitrator has ruled. Alberta Arbitration Board member Alan Beattie, Q.C., found insufficient evidence that Jarrod Underwood, 25, deceived his employer, even though a supervisor witnessed him playing slo-pitch several hours after he called in sick.

"I do not see sufficient reason in this case to conclude that the trust cannot be re-established if the grievor is reinstated," Beattie wrote in a decision that reduced Underwood’s termination to a one-month suspension and granted him 15 months' back pay. "I believe (Underwood), who is a five-year employee, can be a productive employee going forward and that he has learned his lesson."

Underwood was hired in 2006 to install phone and Internet service in customers' homes in the Fort McMurray, Alta., area. On July 3, 2011, he texted his manager, identified in court documents as Mr. Sartison, to say that he would be unable to attend work due to “unforeseen circumstances.” Sartison, aware that Underwood had been competing in a slo-pitch tournament earlier that weekend, went to the ballpark and saw Underwood pitching from the mound. Several weeks earlier, the technician had made a formal request to take July 3 off, but he had been turned down because no one could take his shift.

In an investigative meeting, Underwood claimed he'd suffered diarrhea at 3 a.m. the morning of his shift after eating something “funky” the night before. He told investigators when he felt somewhat better, he'd gone to the park to watch his teammates play. When Sartison confronted him directly about playing in the tournament, he admitted he'd played, but apologized and promised not to repeat the incident.

Lying about playing ball, previous suspension factored into termination

A week later Underwood received a termination letter that called his conduct “egregious” and said by lying to investigators about pitching in the tournament, he had “completely and irreparably destroyed” TELUS' trust in him as an employee. The letter said Underwood had damaged the company’s customer service by forcing it to cancel seven scheduled jobs on July 3. It mentioned a previous three-day suspension Underwood received in 2008, when he'd been seen drinking beer in a company vehicle at the end of his shift.

In arbitration, the Workers Union argued Underwood had been well enough to play ball but not well enough to attend work, because he could use a public washroom at the park but did not think it appropriate to use a customer's washroom if he felt unwell. TELUS countered that Underwood's previous request to have the day off showed his actions were premeditated and he had not truthfully been sick.

TELUS and the Workers Union both relied heavily on past cases in the dispute. The union presented 14 cases where employees who had faked sick days faced minor disciplinary action. In one case, an employee received a written warning after she missed five days of work and it was discovered she'd left the province. Another case in which a sick employee had been caught playing hockey resulted in a three-day suspension. In both instances the disciplined employee had a previous suspension on record.

TELUS compared Underwood's case to 48 other cases of termination, with causes ranging from making fraudulent claims for sick pay, to falsifying doctor's notes, to forging an obituary to deceive supervisors. TELUS counsel argued Underwood's case was more serious than those presented by the union because Underwood had lied to cover his tracks. Debbie Lange, Senior Labour Relations Consultant for TELUS, testified that Underwood's dishonesty was “the same as a false document.”

In his decision, Beattie acknowledged TELUS' concerns that Underwood had breached the company's trust and attempted to cover up his misconduct, and admonished Underwood for bad judgment. Nonetheless, Beattie found TELUS had overreacted by terminating Underwood’s employment. Beattie found the technician's explanation of events plausible, and TELUS had not provided any solid evidence that he had been faking illness. Without evidence of dishonesty, claiming sick pay would not be fraud, and Underwood's only actual misconduct had been lying to investigators about not pitching. Beattie found this lie insignificant because Underwood had already admitted to having gone to the ballpark and therefore “did not attempt to hide the fact that he did not stay home and deal properly with his illness.”

In considering TELUS' arguments, Beattie noted that Underwood's earlier suspension had little in common with the misconduct leading to the current disciplinary action. It was also more than two years old, and under company policy Underwood was entitled to request it to be removed from his record. In light of this, Beattie ruled Underwood's previous record was not grounds for harsher punishment. The arbitrator also felt that despite TELUS' doubts, Underwood's remorse had been sincere and he was not likely to offend again in the future.