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07 September 2018

Richards and Render overturn reinstatement at the Court of Appeal

TELUS Communications Inc., represented by Donald L. Richards and Allison Render, successfully overturned a labour decision reinstating an employee to her position. The arbitrator had reinstated a TELUS employee who was dismissed for chronic lateness, on the basis that TELUS had failed to investigate whether her disabilities were linked to her conduct. However, the arbitrator had already found that TELUS had no duty to accommodate because the union had failed to prove that the employee’s disabilities were causally linked to her lateness.

The majority found that the award was unreasonable because the award contained internal inconsistencies and relied on irrelevant factors. The majority noted that, even if TELUS had failed to investigate a link between the employee’s disabilities and her lateness, this “procedural error” was capable of being cured by arbitration and therefore did not lead to unwarranted discipline. The arbitrator’s finding that an investigation may have led to a different outcome was “pure speculation”. Furthermore, the arbitrator’s conclusion that TELUS mishandled the investigation was inconsistent with his conclusion that TELUS had no duty to inquire further into the grievor’s health.

The Court of Appeal’s decision provides helpful guidance to unionized employers as to the extent of their duty to inquire into an employee’s disabilities and when a failure to inquire may mitigate discipline. The decision can be read here.

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