Poor joke attempt breached school safety procedures
A British Columbia worker’s 10-day suspension for intentionally coughing in a coworker’s truck and violating COVID-19 safety protocols has been upheld by an arbitrator.
Markus Linde worked as an apprentice gardener for the Vancouver School District No. 39 and was hired in 2004.
Beginning in March 2020, the district began implementing measures to protect its employees from the spread of COVID-19, including safe work procedures informing employees how COVID-19 was spread through respiratory droplets in a cough or sneeze, close personal contact and touching surfaces or a person's face before washing their hands. It followed this up with a plan that included “respiratory etiquette” — coughing or sneezing away from others and into a disposable tissue or sleeve followed by washing hands.
Linde developed COVID-19 symptoms in mid-March and self-isolated, remaining off work until April 8. On March 30, he contacted the B.C. Centre for Disease Control and was told he should wait for seven days before returning to work and he didn’t need a test if he was symptom-free.
On April 14, Linde waved down a delivery truck driver at the school where he was working and opened the truck’s passenger door. He leaned into the truck’s cab and coughed three times without any attempt to cover his mouth.
When the driver asked him to move back, Linde said that he been off for two weeks with COVID-19 symptoms. As the driver unloaded his delivery, Linde approached him again and said he had had symptoms but he wasn’t contagious anymore, and if the driver was infected it would be like a “science experiment” and “biowarfare.”
The driver reported the incident, saying that he was shaken up, cleaned his van with bleach and went home to shower afterwards. Linde explained that the driver had stopped to chat with him and he “pretended to cough a couple of times, only making the faintest noise.” He said it was intended as a practical joke and he commented about a science experiment and biowarfare because he was angry over the driver asking why he was at work.
Linde accepted responsibility for his “bad attempt at a joke” and said he would be more professional in the future. After the interview, Linde texted an apology to the driver.
On May 13, the district completed its investigation and suspended Linde for 10 days for violating safety measures with his actions that were “egregious, unnecessary, and showed a complete lack in judgement.” The union grieved, claiming that the suspension was excessive.
The arbitrator noted that the incident occurred early on in the pandemic when there was “considerable uncertainty and a heightened degree of concern among district employees and the public at large.” The district took the pandemic seriously and took significant steps to advise its employees of how to stay safe at work. Linde’s misconduct significantly affected the driver and was contrary to the district’s attempts to keep employees safe, said the arbitrator.
The arbitrator found that Linde’s actions were deliberate and although they didn’t involve a lot of planning, the incident was premeditated when Linde decided to play a practical joke. In addition, there was a “heightened risk of harm as [Linde] had been sick with COVID-19 symptoms and hadn’t been tested before returning to work.
“[Linde’s] conduct was extraordinarily reckless — that is, he took a risk and did not care whether it would materialize or not,” the arbitrator said.
The arbitrator noted that Linde had a record free of discipline, had 16 years of service, and acknowledged his misconduct. However, he also attempted to minimize his misconduct in the interview and his apology wasn’t spontaneous but came later when he was under investigation.
This wasn’t enough to mitigate his misconduct, said the arbitrator in determining that the suspension was appropriate.
