Technician had no symptoms identified by public health
A British Columbia worker’s failure to follow unreasonable instructions to self-isolate and take a COVID-19 test was not insubordination that warranted discharge, an arbitrator has ruled.
Jeremy Arnot was a senior technician in B.C. for Terrapure Environmental, an industrial waste management and cleanup company based in Burlington, Ont.
Arnot was part of a crew dispatched to a mill near Ladysmith, B.C., for a cleanup assignment from Nov. 22 to Nov. 27, 2020. The crew had to stay at a hotel and shuttle to the mill site.
On Nov. 25, Arnot ordered chicken wings from a restaurant. He fell ill later that evening with diarrhea but he had no other symptoms.
The next day, Arnot told his supervisor that he had diarrhea. He was driven back to the hotel and told to get some rest. However, Arnot had lunch plans with a friend and he felt that eating “real food” would benefit him.
Shortly after Arnot left his room, his supervisor contacted him. Arnot explained that he had diarrhea from eating bad chicken wings and he didn’t have any symptoms related to COVID-19. The supervisor didn’t give him any further instructions.
Arnot went to lunch with his friend and afterwards did an online self-assessment from the B.C. Centre for Disease Control (BCCDC). The test results indicated that he didn’t appear to have COVID-19 symptoms — the BCCDC didn’t include diarrhea as a key symptom, but listed it as an “other symptom.”
About two hours later, his supervisor texted to tell him that he needed to self-isolate and call the 811 information line to request a COVID test, as per Terrapure’s pandemic response policy — which did not include diarrhea as a COVID symptom. He was also required to stay away from the mill site until he received a negative test result. Arnot secretly recorded the conversation because he felt he wasn’t being treated fairly.
At an investigative meeting on Dec. 4. Arnot said that he had gone for a COVID test but the lineup was too long. A second meeting by phone was scheduled for Dec. 7, at which Arnot acknowledged that he lied about going for a test and said he couldn’t get through to 811. He said that he did the self-assessment that stated he didn’t need to take a test.
On Dec. 9, Terrapure terminated Arnot’s employment for being “wilfully insubordinate by failing to follow direct instruction” and, by his own admission, untruthful about his actions.
The arbitrator found that management didn’t consider that Arnot didn’t have any of the COVID symptoms outlined by the BCCDC and its own policy before telling him to isolate and take a test. Based on the advice from the BCCDC website, a reasonable person would conclude that he didn’t need to take a test or self-isolate, the arbitrator said, adding that at no point did Terrapure inform Arnot that his failure to do so would result in his discharge.
The arbitrator also found that Arnot wasn’t given any instructions for several hours — he was just told to rest in his hotel room — and Arnot wasn’t familiar with the company’s policy, which had not been published, nor had employees been trained on it.
The arbitrator determined that there was no insubordination as Terrapure did not have grounds to order him to isolate and take a test.
“There is no indication of the employer having engaged in an analysis of whether a demand was justified in light of what they knew at the time,” said the arbitrator. “On the application of the employer’s policy alone a demand would not have been justified, as diarrhea is not a listed symptom of COVID.”
The arbitrator found termination was excessive and substituted a five-day suspension for Arnot’s dishonesty in the investigation and the surreptitious recording of the phone call.
