Arbitrator upholds Decision to fire Employee for Failing to Follow COVID-19 Rules

In the recent decision, Garda Security Screening Inc. v IAM, District 140 (Shoker Grievance) [2020] O.L.A.A. No. 162, an employee’s employment was terminated due to the failure to follow the employer’s COVID-19 rules. The employee signed a statement, annually, confirming she was aware of the employer’s Code of Ethics and that she understood that a breach of the Code could result in discipline.

In response to the pandemic, the employer communicated guidelines of the Public Health Agency of Canada to its employees. The guidelines required employees to isolate while waiting for the results of a lab test for COVID-19. The employee was not to report to work if they had gone for a test and were awaiting the results.  The grievor denied that she was aware of the requirement, but both the employer and union acknowledged that the employees were made fully aware of this requirement.

On April 12, 2020, the employer was informed by the employee that she had tested positive for COVID-19. The grievor was tested on April 6, 2020, and was informed that she was positive on April 12, 2020. Following an investigation, the employer determined that the individual had gone for a test on April 6, 2020, and returned to work following the test claiming that she did not feel sick, contrary to the requirement to isolate following a test. The grievor argued that she was not aware of the requirement to self-isolate following a COVID-19 test and believed that because she did not feel sick, she could return to work.

The grievor’s employment was terminated on April 23, 2020 for failing to follow the COVID-19 guidelines. The employer took the position that the grievor was aware of the requirement to isolate after being tested for COVID-19 and that she recklessly disregarded these important safety guidelines. In addition, her actions jeopardized the health of co-workers and the travelling public since she worked at an airport.  She grieved the termination of her employment.

The Arbitrator determined that the grievor was aware of the public health guidelines and that it was clear that she was required to isolate while awaiting COVID-19 test results. Specifically, the actions of the grievor were a clear violation of the employer’s Code of Ethics and public health guidelines. The fact that she did not feel sick was irrelevant. She chose to put others at risk of illness or death and disregarded a clear rule that required her to isolate. The grievance was dismissed.

Breach of health and safety rules have always been taken seriously by Arbitrators when considering appropriate discipline, especially when the consequences are so serious. This case provides an example of a breach of COVID-19 protocols. Interestingly, the media coverage of COVID-19 and its seriousness, in addition to the well-known consequences, were factors for the arbitrator in concluding that the grievor must have known the tremendous risk that she was placing others in by returning to work after a test and after experiencing symptoms that led her to get a test.  It is important to communicate clear rules and guidelines to employees – if they are sick or have been tested, employees should be prohibited from coming into the workplace.

Please contact one of our lawyers if you would like us to review your current COVID-19 rules and procedures.