In two recent labour arbitration cases, arbitrators upheld the termination of employees who knowingly breached COVID-19 protocols in the workplace. The decisions offer insight for non-unionized workplaces as they navigate the implementation of COVID-19 safety policies.
Garda Security Screening Inc. v. IAM, District 140, (“Garda”)  O.L.A.A. No. 162
In this case, an employee who worked in an airport was terminated because she attended the workplace while she was awaiting COVID-19 test results. The employer had communicated to employees that they were required to self-isolate if they were awaiting COVID-19 test results. The employee disclosed to her employer that she tested positive for COVID-19 but originally advised them that she did not attend work pending her test results. The employer’s investigation uncovered that she attended work after going in for her COVID-19 test. When put to the employee, she stated that she attended work because she did not feel sick.
The arbitrator found that the employer took the necessary precautions to ensure all employees, including the grievor, were aware of its COVID-19 protocols. In upholding the termination, the arbitrator commented that the grievor’s actions violated the employer and public health’s guidelines and that her claim of not feeling sick was “absolutely irrelevant.” A “very important consideration” was that the grievor had been sent for a COVID-19 test by her family doctor after visiting the doctor for a what she thought was a sinus issue, so it was unlikely that she truly did not feel sick when she attended the workplace.
LIUNA v. Aecon Industrial (Aegon Construction Group Inc.), (“Aecon”) 2020 CanLII 91950
The employee in this case exhibited COVID-19 symptoms and had been directed not to attend work until he was contacted by the employer’s nurse. Despite these instructions, he attended the workplace for his next scheduled shift. When he attended, he was asked a series of screening questions, including about having COVID-19 symptoms. He answered all questions in the negative, despite having a runny nose, which he attributed to seasonal allergies. Upon realizing the employee was in the workplace, his employer sent him home and later terminated him with just cause.
The arbitrator upheld the termination, commenting that the employee’s “deliberate and cavalier attitude toward the COVID safety risks he represented both to his co-workers and in turn to the Company’s obligations to protect the workplace was unconscionable, unreasonable and totally unacceptable.” The arbitrator further noted the employee had a disciplinary record including other safety violations.
These two cases provide insight into what may be considered cause for termination within the context of the COVID-19 pandemic and reasonable safety protocols in place at the time. It is important to note that these are labour decisions, which have a different procedure and threshold than employment termination cases, and that the conduct in them was particularly egregious. In both cases, the employees were deceptive and knowingly breached COVID-19 safety protocols. Further, in Garda, the employee showed no remorse for what she did, even at the hearing. In Aecon, the employee had a significant disciplinary record.
Accordingly, it is advisable that employers not jump to the conclusion that there is cause for termination with one innocent breach of protocol, particularly when it relates to a long service employee with a clean employment record. Further, as the COVID-19 pandemic and our governments’ reactions to it are evolving quickly, we expect the analysis of what amounts to just cause in the specific case to vary depending on the status of COVID-19 in the jurisdiction at the time, the severity of the breach (including whether it was dishonest and/or deliberate and whether other employees were put at risk) in light of that status, and public health official’s safety protocol guidance at the time.
These two cases are a reminder to employers of the importance of having effective policies in place which are clearly communicated to employees.