As employers continue to grapple with managing the risk of COVID-19 in the workplace, it is unsurprising that we are beginning to see arbitrators weigh in on when a failure to follow infection prevention protocols may give rise to discipline or termination from employment.
Last month, we blogged on Arbitrator Keller's decision in Garda Security Screening Inc. v IAM, District 140. In that case, the termination of an employee who failed to self-isolate while waiting for the results of a COVID-19 test was upheld. Arbitrator Keller concluded that the grievor's actions were in clear violation of the employer's health and safety policies and put countless others at risk of illness or death.
This decision clearly demonstrated that an employee's refusal to follow COVID-19 guidelines constitutes serious misconduct and can be treated as such by employers. That said, not all violations of COVID-19 guidelines will give rise to just cause for termination.
In the very recent case of Trillium Health Partners v CUPE Local 5180¸ Arbitrator Jesin dealt with two grievances alleging suspension without cause and termination without cause respectively.
The grievor was a part-time facilities transport representative at the Hospital. In this role, he was required to transport various items, including COVID-19 specimens, throughout the Hospital. During transport, the test swab is placed in a tube which is then placed in a plastic bag.
On March 13, 2020, the grievor raised a concern about transporting COVID-19 specimens and asked to be provided with scrubs for the task. In response, the Hospital held a meeting and explained that employees did not need to wear scrubs for transporting the samples. It was further stated that COVID-19 was spread by droplets similar to the flu infection and that control protocols similar to preventing flu were being taken.
Shortly thereafter, on or about April 1, 2020, a news story posted audio excerpts from the meeting held with the grievor, as well as quotes from an unnamed employee, and reported that the management at the Hospital was not taking COVID-19 seriously.
After release of the article, the Hospital conducted an investigation and concluded that the grievor was the only possible source of the quotes, that the grievor had disclosed contents of a confidential meeting, and was dishonest when asked about such misconduct. Noting that the grievor had already received a written warning for past misconduct, the Hospital issued him a five day suspension.
Subsequently, in July 2020, the grievor alongside a number of other employees attempted to hold a pizza party despite restrictions in the Hospital against social gathering and the sharing of food. That same day, the grievor intervened when a Hospital screener attempted to prevent a vendor from entering the premises without a mask. In a profanity laced tirade, the grievor complained that the Hospital's COVID-19 protocols were making it difficult for employees to do their jobs. When questioned, the grievor once again denied the misconduct and was ultimately terminated from employment.
Arbitrator Jesin found that the grievor's behavior demonstrated an ongoing pattern of disrespect and resistance to the authority of the Hospital in its efforts to curb the spread of COVID-19. In considering all the evidence, including the penalties imposed on the other employees involved in the pizza party incident, Arbitrator Jesin ordered that the grievor should be reinstated with no loss of seniority but with no compensation. As a further deterrent, he ordered that if the grievor engages in culpable misconduct for which discipline would normally be appropriate in the 18 months following his reinstatement, it shall constitute just cause for termination.
Although not a total victory for the Hospital, this decision emphasizes the severity of COVID-19 related misconduct as well as the importance of clear and well-documented progressive discipline.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.