There are various laws, orders, regulations and policies that apply during COVID-19 concerning health and safety precautions, including requirements for self-isolation or quarantine in certain circumstances. As the COVID-19 pandemic has gone on, it is apparent that some individuals have disregarded these requirements, as evidenced by the large number of tickets and fines reported to have been issued for contraventions of various rules in place concerning COVID-19. A question that employers often wonder is whether they can dismiss an employee if they fail to follow applicable COVID-19 rules. The answer will be context specific and will depend, in large part, on the rules and policies applicable to that individual’s employment and workplace. However, a recent Ontario arbitration decision helps shed some light on steps employers can take when considering a termination for cause.
In a recent arbitration decision, Garda Security Screening Inc. v. IAM, District 140 [2020] O.L.A.A. No. 162 (Ontario Labour Arbitration Awards), a decision was reached in a grievance filed by an employee who had been terminated for attending work while she was awaiting the results of a COVID-19 test, which later turned out to be positive. Prior to these events, the employer had communicated the guidelines of the Public Health Agency of Canada to all employees, including the guidelines requiring employees not to report for work if they have gone for a COVID test and are awaiting the results. After the employer was notified that the employee has tested positive for COVID-19, the employer undertook contact tracing efforts to identify other employees who may have been exposed. The employee had initially lied about the dates she worked and stated no one told her of the requirement to self-isolate while awaiting her test results. It was later shown that she attended work the day she was tested and that she had seen a bulletin advising of the guidelines around COVID-19.
The arbitrator found that at the time of the events giving rise to the termination, all of which occurred in April 2020, that the pandemic had been the top item on the news and that it was hard to believe that anyone was not aware of the expectations from public health officials about what to do after having been tested. The employee also worked at an airport, meaning that she had the potential to expose not only co-workers, but also airport travellers and the general public at risk. The arbitrator found the employee’s actions to be a clear violation of the employer’s and public heath guidelines and upheld the dismissal.
While unionized work circumstances differ in many ways from non-unionized circumstances, the decision highlights the importance to employers in ensuring that guidelines are in place for workers who are attending the workplace, and then both have a procedure to show that employees have reviewed those guidelines and are conducting proper daily health checks prior to attending work. Having clear policies that provide notice of clear consequences to employees, with employees signing off that they have read and understood such policies, will ensure employers are in the best position in the event that employees are not following COVID-19 rules.
For further information and advice on COVID-19 policies or terminations, please contact Clark Wilson LLP’s Employment & Labour group.
