Employee’s firing for playing slo-pitch after calling in sick upheld

Court deems arbitrator’s finding that employee could manage illness while playing softball but not at work ‘unreasonable’
|employmentlawtoday.com|Last Updated: 07/12/2013

An Alberta court has overruled the reinstatement of a Telus employee who was fired for calling in sick and then playing in a slo-pitch softball tournament.

Jarrod Underwood, 25, was hired in 2006 to install phone and Internet service in customers' homes in the Fort McMurray, Alta., area. In June 2011, he asked for July 3 off so he could play in a slo-pitch tournament, but the request was denied because Telus had no other technicians available to work that day. However, on July 3, Underwood texted his manager to say that he would be unable to come to work due to “unforeseen circumstances.” The manager was aware Underwood had been competing in a slo-pitch tournament earlier that weekend, went to the ballpark and saw Underwood pitching from the mound.

When the manager confronted him directly at work the next day about playing in the tournament, Underwood admitted he'd played, but apologized and promised not to repeat the incident. Underwood claimed he'd suffered diarrhea at 3 the morning of his shift after eating something “funky” the night before. He told Telus investigators when he felt somewhat better, he'd gone to the park to watch his teammates play, though he still wasn’t well enough to work.

A week later Underwood received a termination letter that called his conduct “egregious” and said by lying 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.

The 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. The arbitrator found this to be a reasonable explanation and, though also saying Underwood showed bad judgment, determined Telus overreacted. Telus was ordered to reinstate Underwood with a 30-day suspension.

Telus appealed to the Alberta Court of Queen’s Bench, which found the arbitrator’s assumption that Underwood was actually sick on July 3, 2011, was an “unreasonable” conclusion.

“I am of the view that the conclusion than an employee who is too sick to work could still pitch in a baseball game defies logic and common sense,” said the court.“Further, while I can appreciate that attending at customers’ homes and businesses while suffering from diarrhea might carry with it some awkwardness, it seems to me unreasonable to conclude that the problem could be so severe as to merit missing work, yet be manageable from the pitcher’s mound.”

The arbitrator’s decision was overturned and Underwood’s termination was upheld.

Related article: Sick employee caught playing slo-pitch

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