A recent decision from Arbitrator Eli Gedalof, Johnson Controls Canada v Teamsters Local, Union 419 (Williams Grievance), offers more insight into the importance of COVID-19 policies and what can happen when employees do not follow the employer's guidelines.
Background:
The grievor was terminated after an investigation found that he intentionally lied on his COVID screening form multiple times between March 20 and 25, 2020. The grievor attested on the form that that he was not exhibiting any COVID-19 symptoms, when he had in fact been exhibiting such symptoms and tested positive for COVID shortly after. The Employer, who provides maintenance services to Humber River Hospital, had adopted the hospital's COVID-19 infection control policy. That policy had been communicated to employees on multiple occasions. The grievor was terminated for violating the policy and placing his co-workers, hospital staff and patients at serious risk.
The Union grieved the termination claiming that the grievor reasonably believed that his symptoms were related to his allergies and that when he realized he might be sick he immediately notified his employer and underwent testing. The Union relied on the past case Tenneco Canada Inc. v United Steel Workers. In Tenneco, an employee genuinely believed that he was experiencing normal symptoms of his allergies when he wrongly attested that he did not have COVID-19 symptoms. In that matter, the Arbitrator found that the failure to report his symptoms was serious and wrong, but the misconduct did not warrant discharge.
The Employer relied on two previous cases which found that an employer had just cause for terminating employees that disobeyed the COVID policies (one of which we blogged about here). The Employer also relied on the grievor's past discipline record which included a written warning and multiple suspensions. The discipline was relevant to the termination as it was a response to the grievor falsifying work records and failing to use a safety device on multiple occasions.
The decision:
Arbitrator Gedalof found that the grievor committed multiple serious breaches of the workplace policy that was intended to protect the health and safety of workers, patients and the public. The circumstances of the violation intensified the seriousness of the breach as the violation took place during the early stages of the pandemic, when employees did not always have access to PPE, and it occurred within a hospital environment where policy protections were vital.
In response to the grievor's claims that he believed the symptoms were related to his allergies, the Arbitrator turned to several witness statements. The statements revealed that the grievor had a cough that was described as heavy and concerning, that he was experiencing tiredness and chills, and that several of his coworkers had expressed concerns to him about his symptoms being related to COVID-19.
When addressing the arguments and various cases cited by the Employer and the Union, Arbitrator Geldof noted that each of the cases emphasized the serious nature of breaching workplace COVID screening measures and the need to consider the specific circumstances and/or record of the grievor in determining what penalty is appropriate. The Arbitrator differentiated the current matter from Tenneco, pointing out that the grievor in that case reported his symptoms as soon as he suspected they might not be related to his allergies and that there was no evidence he had a past discipline record. In the facts before Arbitrator Gedalof, the grievor consistently failed to report his symptoms over a five-day period even after he was prompted to do so. This breach, coupled with his serious record of prior discipline, caused the Arbitrator to find that the discharge was justified.
Takeaways:
This case highlights two key takeaways for employers. First, the importance of a clear and effective COVID-19 policy. In the event that an employee irresponsibly disregards COVID safety, it is crucial that employers have a reliable policy in place on the COVID measures they require so that they can rely on the policy for disciplinary measures. Second, this case exemplifies the need for employers to document and maintain an employee's disciplinary record. One of the deciding factors that justified the grievor's termination was his past documented discipline. It is crucial that employers document any punitive measures they take in case a situation escalates further and they need to rely on an employee's history to support a termination.
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