In Garda Security Screening Inc v IAM, District 140 (Shoker Grievance) ([2020] OLAA No 162), an arbitrator found that an employee's failure to follow their employer's and the public health guidelines relating to COVID-19 was just cause for termination. As a unionised employee, the employee benefited from the just cause protections for termination under the collective agreement. Despite those protections, the arbitrator found that the employee's actions were a "clear violation" of COVID-19 guidelines and warranted dismissal.
Violation of COVID-19 guidelines
The employee was employed as a screening officer at Toronto's Pearson International Airport. As the COVID-19 pandemic began to affect Ontario, the employer, Garda Security Screening Inc, sent to its employees the guidelines established by the Public Health Agency of Canada regarding COVID-19. The employer expected its employees to comply with the guidelines, which required employees to self-isolate where they were waiting for the results of a COVID-19 test.
On 12 April 2020 the employee informed her employer that she had tested positive for COVID-19. In response, the employer sought to identify which other employees and individuals had been in close contact with the employee. To do so, the employer requested that the employee prepare a written statement outlining her actions relating to the positive test. The employee wrote that she had received a COVID-19 test on 6 April 2020. She claimed that she had not worked between 6 April 2020 and 8 April 2020 while waiting to receive the results of her test. She received the results of her test on 12 April 2020. Despite her claims that she had not worked between 6 April 2020 and 8 April 2020, the employee also claimed that she had been unaware that she was required to self-isolate during this time.
The employer undertook a further investigation and determined that the employee had lied about her claim that she had not worked on 6 April 2020. On 23 April 2020 the employer met with the employee as part of the investigation, at which time the employee stated that she had not notified the employer that she had gone for the test on 6 April 2020 and that she had attended work on the same day because she "didn't feel sick". During the 23 April 2020 meeting, the employer showed the employee a bulletin titled "Know the Difference: Self-Monitoring, Self-Isolation, and Isolation for COVID-19 guidelines". The employee agreed that she had seen the bulletin – a part of the abovementioned Public Health Agency of Canada guidelines – which clearly required employees to self-isolate while waiting for COVID-19 test results. The employee was dismissed following the conclusion of the 23 April 2020 meeting.
Dismissal upheld at arbitration
The arbitrator's decision to uphold the employee's dismissal was succinct and reflects the seriousness of employers' obligation to maintain health and safety in the workplace. The arbitrator easily found that "the employer took the necessary precautions to ensure that all employees, including the grievor, were and are aware of its guidelines and those of Public Health". Similarly, the arbitrator found that there was no doubt that the employer had made it clear that employees who were tested for COVID-19 had to self-isolate while waiting for results. In short, the arbitrator stated that "caution and good sense, if nothing else, should have dictated that [the employee] not return to work until she knew her medical status".
The arbitrator then turned to the employee's argument – namely, that she had been unaware that she was required to self-isolate while waiting for her COVID-19 test results. The arbitrator rejected the employee's argument entirely, finding that:
given how notorious the situation was, and given the wall-to-wall reporting of the situation, I cannot conclude that the employee was unaware of the consequences of spreading the virus if she was infected.
The arbitrator then went on to find that:
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.
Given these findings, the arbitrator dismissed the grievance and confirmed the termination of employment.
This case is an important reminder to both employers and employees alike: workplace health and safety is a serious matter and employees' failure to follow clear employer directions regarding health and safety protocols can constitute just cause for dismissal.
Employers should implement the following best practices to ensure that all parties are aware of their responsibilities and obligations in the workplace:
- Employees should regularly sign off on an employer code of conduct.
- Updates regarding public health guidelines and employer policies should be communicated in writing, easily accessible for employees and well documented.
- Employers should follow public health guidelines as closely as possible to help ensure the enforceability of COVID-19 policies.
