February 22, 2021
While cases before the courts will wind their way through slowly, labour arbitration hearings can move at a quicker pace. Some COVID issues have already been decided in the collective bargaining context. Of note is a recent arbitration decision in the federal context which upheld the termination of a worker for attending at work and failing to self-isolate while awaiting the outcome of a COVID test, after she was identified as a close contact. She later tested positive.
The arbitrator found that the contravention of the requirement to self-isolate violated the employer’s rules with respect to these matters, as well as the guidelines of the relevant public health authority. In this case, the employee alleged she was not aware of the rules. The arbitrator held that even if the employee had not been made aware of the public health authority’s guidelines through news broadcasts by early April 2020, the requirement had been clearly communicated to all employees by the employer and there was no ambiguity as to what was required of employees awaiting the results of a COVID-19 test.
The arbitrator also expressed that the employee’s lack of remorse relating to her actions was also a relevant consideration in upholding the termination; notwithstanding that there was no prior disciplinary record. It was held that the employee “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.”
Employees who attempt to be honest, and legitimately make mistakes in their adherence to policy or public health requirements, may well be in a different position. Terminations for cause are often referred to as ‘the capital punishment of employment law’. Therefore they always require the application of the ‘contextual approach’ and a review of the entirety of the situation in the context of the employee’s employment, in order to ensure that the discipline imposed is not too harsh in the circumstances.
While this arbitral decision should not be relied upon in all cases to terminate an employee for such conduct, it demonstrates that, at least in some cases, it may be justified.
Employers who are provincially regulated are now required to have policies in place on how to address COVID-19 requirements and to engage in daily screening. Training employees on these requirements would definitely be a best practice to implement.
Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance),  O.L.A.A. No. 162 (Keller).