Previously printed in the LexisNexis Labour Notes Newsletter.
In the recent decision of Trillium Health Partners v. CUPE, Loc. 5180, 2021 CanLII 127 (Jesin), an Ontario arbitrator, Norm Jesin, reinstated an employee to employment after he was suspended and subsequently discharged for failing to adhere to the employer's COVID-19 safety protocols.
In March 2020, the Grievor, who was a part-time employee with less than four years of service, was asked to transport COVID-19 specimens for his employer (the "Hospital") and raised concerns about whether he should be provided with additional personal protective equipment (PPE) in order to perform the task. Shortly afterwards, the Hospital met with the Grievor to discuss his concerns and advised that, in light of a number of factors, additional PPE was not required.
About two weeks later, a news outlet published a story claiming that it was in possession of a video recording of the meeting between the Hospital and the Grievor. The employer conducted an investigation and concluded that the Grievor had improperly made the video recording and disclosed it (in spite of an outright denial by the Grievor). The Hospital issued him with a five-day unpaid suspension because of his misconduct, including his dishonesty during the investigation.
A number of months later, in July 2020, the Grievor engaged in a number of activities contrary to the Hospital's COVID-19 safety protocols:
- Together with several other employees, the Grievor organized a pizza party at the Hospital despite the employer's restrictions against such activities.
- Along with the other employees, the Grievor ignored the direction from a "screener" not to bring the pizza onto the premises.
- The Grievor intervened when a "screener" tried to prevent a vendor from entering the premises without a mask, and took issue with the employer's COVID-19 safety protocols and did so in a manner "laced with profanity".
- He denied his involvement in any of the above misconduct.
In light of the Grievor's wrongdoing, the Hospital proceeded to terminate his employment. The other employees involved in the pizza party were, however, issued with lesser disciplinary penalties, including a written warning and non-disciplinary coaching. Unfortunately, nothing is known about the prior disciplinary records of the other employees (or lack thereof).
In brief reasons, the Arbitrator upheld the five-day suspension, but overturned the discharge and replaced it with a "time served" suspension and what was, in essence, a "last chance" warning.
In arriving at his conclusion, the Arbitrator acknowledged that the Grievor had engaged in an "ongoing pattern of disrespect for the Hospital's authority". He nonetheless determined termination of the Grievor's employment to be excessive in light of the more moderate discipline issued to the other employees involved in the pizza party.
Takeaways for Employers
When confronted with facts like those in the Trillium Health Partners case - and, in particular, a short-service employee who has a lengthy suspension on his or her record and continues to engage in the same or similar misconduct, including dishonesty - employers should expect discharge to be upheld in the vast majority of situations.
This case represents an important cautionary tale and provides a reminder of a few key principles:
- It is expected that there will be consistency in the imposition of disciplinary penalties, and unjustifiable differences in the penalties issued may be fatal to an employer's defence.
- While there may be a number of reasons for issuing different penalties for similar misconduct (e.g. one employee has a more extensive disciplinary record, occupies a position of trust or is the "ringleader" in an incident of misconduct), employers must be prepared to articulate and prove the reasons for the different penalties.
- Extenuating circumstances such as the COVID-19 pandemic do not provide employers with free rein to depart from well-established labour relations principles.
Brandon Hillis is a partner at the Vancouver-based employment and labour law boutique of Roper Greyell LLP, where he practises in all areas of workplace law. He uses his technical knowledge of the law to find the best strategies for his clients. He has represented employers in workplace arbitrations, collective agreement disputes and human rights complaints.Gabrielle Berron-Styan is an articled student at Roper Greyell. She is interested in all areas of employment and labour law and focuses on workplace human rights and privacy law and workplace investigations.
For more information about Brandon and Gabrielle and the work they do at Roper Greyell and to obtain their contact information, please visit www.ropergreyell.com.
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