Worker returned to work knowing housemate tested positive
A British Columbia employer had just cause to fire a worker without notice after the worker violated the employer’s COVID-19 safety plan, the BC Employment Standards Tribunal has ruled.
The worker was employed as a packer at a poultry processing plant, hired in June 2015.
During the COVID-19 pandemic, the employer developed a safety plan to help guard against COVID-19 infections, which was of particular concern because the outbreaks had led to shutdowns of the plant multiple times. The safety plan prohibited any person from entering the plant if they shared a household with someone who contracted COVID-19 or was displaying symptoms.
On Sept. 28, 2021, the worker was on a coffee break and decided to move his vehicle into the parking spot of another employee with whom he lived. The other employee told him that she tested positive for COVID-19, but he returned to work after his break and worked for another four hours.
Before the worker left the plant, he told his supervisor that he needed to get a COVID-19 test and self-isolate while waiting for the results.
Negative test, but still fired
The worker obtained a test the next day, which turned out to be negative. He reported for work on Oct. 4 with his negative test results, but he was prevented from entering and his employment was terminated without pay or notice.
The worker filed an employment standards complaint claiming that he was entitled to compensation for length of service under the BC Employment Standards Act (ESA).
A delegate of the Director of Employment Standards noted that the employer was responsible for ensuring the safety of its employees and the security of its business while the risk of COVID-19 outbreaks and the economic downturn during the pandemic were threats. The safety plan it adopted for COVID-19 served this purpose and all employees were advised of it, the delegate said.
The delegate found that the worker returned to work after he was told by his housemate that she had tested positive, although he knew that it was contrary to the employer’s safety plan. This was a breach of the worker’s duty to his employer and serious misconduct, said the delegate in determining that the employer had just cause to terminate the worker’s employment without pay or notice.
Misconduct not serious: worker
The worker appealed the delegate’s determination, alleging that the delegate failed to observe the principles of natural justice. The worker acknowledged that the poultry processing industry experienced several shutdowns due to COVID-19 outbreaks, but argued that he only worked for four hours after learning of his housemate’s positive test, he had no symptoms, and he wanted to help his team finish the shift. He argued that it wasn’t enough to constitute just cause for dismissal.
The tribunal noted that the ESA allows for appeals of employment standards determinations on three grounds – an error in law, a failure to observe the principles of natural justice, or new evidence has become available.
While the worker raised the issue of natural justice, he didn’t raise any issues of procedural fairness, said the tribunal, noting that his case was heard by an independent decision-maker and he was given the opportunity to present his evidence and know the case against him. The main issue left was whether there was an error in the finding that there was just cause, the tribunal said.
The tribunal agreed with the delegate that the pandemic was a significant concern at the time and poultry processing plants were particularly threatened because of the risk of shutdown. The worker made a conscious decision to contravene the employer’s safety plan by returning to work knowing that his housemate had tested positive for COVID-19. This was serious misconduct that had potential consequences to the health of other employees, the tribunal said.
The tribunal found that there were other cases in which employers had just cause to terminate employees who didn’t follow COVID-19 policies, so the delegate’s decision was not an error in law that went against natural justice. As a result, there was no basis to interfere with the delegate’s decision, said the tribunal.
The worker’s appeal was dismissed and the decision that the worker was not owed compensation for length of service was upheld. See Kua Yung Chao (Re), 2023 BCEST 67.
