Saturday, 12 December 2020

Failure to Follow Covid-19 Directions Cause for Termination

Is an employee’s failure (or blatant refusal) to follow an employer’s directions to protect public health – during a global pandemic – cause for termination of employment?

In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A. No. 162, Labour Arbitrator M. Brian Keller had no problem finding that it was.

Facts

The facts of the case were uncomplicated:

  • The grievor worked as a screening officer at Toronto’s Pearson International Airport.
  • On March 27, 2020, in response to the pandemic, the employer, Garda Security Screening Inc., communicated the guidelines of the Public Agency Health of Canada to all employees, including the grievor. Part of those guidelines, under "Isolation", requires employees to isolate if the employee is waiting for the results of a lab test for COVID- 19.
  • On April 12, 2020, the employer was informed by the grievor that she had tested positive for Covid -19.
  • The grievor was asked to write a statement with respect to her actions. The grievor wrote that she was tested on April 6, 2020, that she did not work on April 6, 7, or 8, while waiting for her results, and that she was informed that she was positive on April 12, 2020. She wrote that no one told her, and she was not aware, that she was required to self-isolate.
  • Following further investigation, the employer determined that, contrary to the assertions of the grievor, she did work on April 6.
  • The employer met with the grievor on April 23, and the grievor told the employer during the investigation, and the arbitrator during the hearing, that she did not inform the employer that she had gone for the test, and she attended work because she didn't feel sick.
  • During that meeting, the employer showed the grievor a bulletin entitled "Know the Difference: Self -- Monitoring, Self -- Isolation, and Isolation for Covid -- 19 guidelines". The grievor acknowledged that she had seen the bulletin, which are the guidelines stated earlier in these reasons, which require isolation while waiting for results of the test for Covid- 19.
  • The grievor's employment was terminated that same day, April 23, 2020.

The arbitrator was satisfied that the employer took the necessary precautions to ensure that all employees, including the grievor, were, and are, are aware of its guidelines and those of Public Health. The arbitrator was further satisfied that the grievor was aware of those guidelines.

The arbitrator found no ambiguity with respect to what employees were required to do following a Covid -- 19 test: They were to isolate until they received their results.

Decision of the Labour Arbitrator

In dismissing the grievance Arbitrator Keller provided the following reasons of his decision:

[1] … The grievor, annually, signed an attestation confirming that she was aware of the employer's Code of Ethics. The attestation indicates that she confirms having read and understood the Code of Ethics, agrees to abide by them and acknowledges that a breach of the Code could result in discipline.

[11] I believe it is fair to say that what was happening with respect to Covid- 19 and the pandemic had been, by April 6, the number one item in the news and the number one item being talked about generally from at least the beginning of March. It is hard to believe that anyone was not aware of the expectations from public health in Ontario and Canada about what to do after having been tested. But, even if the grievor had not been so generally aware, she and her coworkers had been specifically made aware of what to do by the guidelines issued by the employer which were brought to the attention of all employees.

[12] In the number of days prior to April 6, 2020, the number of cases in Ontario was surging. This was reported on television, on the radio and in the print media. The week of April 6 was one of highest weeks of new cases in Ontario. In fact, the third highest number of new cases in Ontario was on April 6.

[13] Given how notorious the situation was, and given the wall-to-wall reporting of the situation, I cannot conclude that the grievor was unaware of the consequences of spreading the virus if she was infected. Her doctor, out of an abundance of caution, if nothing else, sent her for a test because she worked at the airport. Needless to say, that was a very important consideration. The grievor put at risk, by returning to work, her colleagues. She also put at risk other persons working at the airport with whom she came into contact. She also put at risk the general public flying from Pearson and, in turn, persons with whom those passengers would have had contact at their destination.

[15] The actions of the grievor were a clear violation of the employer's and public health guidelines. Her claim of not feeling sick is absolutely irrelevant. She was required to isolate, as she knew, for the safety and health of others. She chose not to, thereby putting countless others at risk of illness or death.

[16] The grievor, at the hearing, showed no remorse for what she did, or concern about the potential consequences of her having returned to work. This is, to say the least, troubling and gives me no confidence that she understands the potential consequences of her action.

Commentary

It is important to remember that this decision comes out of the labour context, meaning that the grievor in this case was a unionized employee. Whether the grievor’s actions constituted “cause” for termination therefor was arguably set higher than it may have been in other cases.

It is clear from his reasons for decision that the arbitrator in this case was unimpressed by the employee’s actions, lack of remorse, and, likely, outright dishonesty both to her employer and to him.

What the case means is that if an employer clearly communicates a clear direction, intended to protect the health and safety of both coworkers and members of the public, and an employee chooses to ignore those directions, then they can be fired for cause.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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