Ideas for presenting a CLOSING ARGUMENT to an arbitrator
The following is based on the case of Larry who was found skiing while he was
supposed to be on paid sick leave rehabilitating a shoulder and back injury. It is
presented as the union’s argument:
“Mr. Chair, you have heard that Larry was unjustly terminated for alleged fraud on the
sick leave system. The evidence presented to you has shown that in fact he was under
doctor’s orders and was engaging in rehabilitative activities at the time he was seen
skiing. Therefore pursuant to the first of the Wm Scott rules we say that there is NO
cause for discipline and therefore there can be NO discipline. We say that Larry should
be made whole in every respect.
In the alternative, should you decide that there is some minor aspect of cause in this
case we argue that the penalty is entirely inappropriate in the circumstances. Larry is a
20 year employee with a clean work record who has provided valuable service to the
employer and IF he has done anything wrong he is deserving of the opportunity of a
second chance to rehabilitate himself in the eyes of the employer. Pursuant to the 2nd
Wm Scott rule we urge you to find the penalty is inappropriate and we suggest in those
circumstances that a written warning would be sufficient to ensure that Larry does not
do anything like this in future.
We have two cases we think you should refer to in your deliberations.
The first is the case of Vancouver Metal Corp’n and the Steelworkers Union.
1. In that case Joe Thornton was fired for cause when he was observed playing golf
after he had been on injury leave for 3 weeks with back pain. Mr. Thornton was
an 18 year employee with an otherwise good record. Evidence in the hearing
from his doctor and physiotherapist indicated that he was well on his way to
recuperating and that the two medical professionals had given him the go-ahead
to resume recreational activities. They both testified that in their opinion such
activities would promote his recovery. They noted that when he was observed
playing golf it was the weekend prior to his scheduled return to work on Thursday
of the following week. [introduce the case i.e. tell the FULL story of the case
i.e. your theory of it including ALL the key facts. Do NOT use excerpts
from the case to tell the story, instead summarize it in your own words just
as if you were creating a theory of the case].
2. The arbitrator in the Vancouver Metal Corp’n case found that Mr. Thornton
should have advised the company that he was nearly recovered and had been
told to resume recreational activities. However the arbitrator concluded that
there was no intention on Mr. Thornton’s behalf to defraud the sick leave plan.

The arbitrator reinstated Mr. Thornton with a 1 week suspension. [tell what the
outcome was].
3. I would like to draw your attention to the following passages in Vancouver Metal
Corp’n:
a. On page 21 paragraph #123 the arbitrator stated: “It is clear on the
evidence that Mr. Thornton simply followed the medical advice given to
him. However, it is also clear that he was not frank and forthcoming in
advising the employer of his imminent recovery. As a long service
employee he has to know how being seen on the local golf course would
be interpreted by other employees i.e. that he had been ‘faking an injury’.
I note that the grievor was not faking but mention this to highlight the
responsibility sick or injured employees have to keep their employer up to
date on the progress of their recovery” [take the arbitrator to pages and
paragraphs where there is good law or the arbitrator’s views on how
such cases should be decided or on KEY facts issues ... DO NOT
take the arbitrator through whole sections of FACTS – those should
be covered in your introduction to the case].
b. Also on page 22 at paragraph 131 the arbitrator states: “The Wm Scott
and Co. Ltd. rules and the terms of the BC Labour Relations Code require
that I inquire first whether there is cause for discipline. In this case I
answer that question in the affirmative. Having found cause, I am next
required to ascertain if the penalty imposed was reasonable in all the
circumstances of the case. On that issue I find that the employer’s
response in terminating an 18 year employee in this matter was not
reasonable. As noted earlier, the grievor was not committing fraud on the
sick leave system but he was not entirely straightforward with his
employer. For those reasons I am substituting a 1 week suspension in
lieu of the discharge. The grievor is entitled to have his record cleared of
the termination and is also entitle to retroactive wages less any mitigation
from the end of the one week suspension to date of this award”.
4. Mr. Chair the Vancouver Metal case is like Larry’s in that it deals directly with an
allegation of fraud on the sick leave system. In addition it deals with a long
service employee with an otherwise clear record was following medical advice in
resuming recreational activities as part of his rehabilitation. [identify each way
in which Vancouver Metal is like Larry’s case i.e. length of service, rehab of
an injury, etc. ].
5. Mr Chair the Vancouver Metal Corp’n case stands for the proposition that where
an employee does not INTEND to commit fraud on the sick leave system but is
less than forthcoming with the employer about their recovery such an employee
is entitled to be reinstated with at most a short suspension. [tell the arbitrator

what the legal principle emerging from Vancouver Metal is for e.g. “that
employees engaging in rehab activities cannot be disciplined for fraud on
the sick leave system”].
6. Given that, we say that should you find that there is cause to discipline Larry in
this case then at most cause is limited to not informing the employer fully of his
imminent recovery. In that case we say that a short suspension as in the
Vancouver Metal case should be sufficient to ensure that Larry understands the
seriousness of the situation.
In the second case ... [do the same as for the first case]
Mr. Chair we submit that these two cases support our argument that there can be no
cause for discipline in a situation where the employee was engaging in activities in the
honestly held belief that those activities were part of a rehabilitation program and would
help not hinder his recovery.
1. In closing Mr. Chair we say that Larry was unjustly terminated and that the
employer has NO cause and therefore no discipline is warranted. We ask that
you uphold the grievance, reinstate Larry to his former position with full back pay
and order that the termination be expunged from his personnel file and all other
corporate records.
2. However, should you find there is some minor aspect of cause in this case we
argue in the alternative that the penalty is entirely inappropriate in the
circumstances. In that unlikely situation we say that a written warning is all that
is required to address this matter with a 20 year employee who up to now has
had a clean disciplinary record and who has been a responsible and valuable
employee.”