Disciplinary issues in the time of COVID-19

With the rise of the twin dragons of both worry and denial relating to COVID-19, Canadian employers have found themselves having to tackle novel disciplinary issues ranging from refusals to stay home pending employer direction to the contrary, failure to follow proper COVID-19 protocols and procedures and challenges to the bona fides of employer policies. While upholding disciplinary measures in unionized sectors is not an unusual challenge for employers, some recently reported arbitral decisions would appear to suggest that labour arbitrators may have a lesser inclination to exercise leniency when faced with misconduct directly related to COVID-19.

In the recent Ontario arbitration decision Trillium Health Partners v. CUPE Local 5180, an employee responsible for transporting various items for the benefit of the hospital employer was originally terminated and, following the outcome of the arbitration, suspended without pay as a result of persistent attempts to undermine the employer’s COVID-19 policies and procedures. The employee, who was not comfortable complying with hospital directives regarding the transportation of materials that included COVID swabs, took a video without the knowledge or permission of hospital participants and used it to paint what the arbitrator characterized as a “misleading and inaccurate picture” of the employer’s approach to COVID-19. In what would appear to be somewhat inconsistent behaviour, the same employee supported a vendor’s decision not to wear a mask when they visited the employee’s place of employment, in spite of the employer’s requirement that a mask be worn. This incident eventually culminated in the employee’s termination.

In spite of recognizing that COVID-19 may have generated “extra anxiety,” the arbitrator took a dim view of the employee’s behaviour. While the employee was reinstated, the arbitrator substituted the original dismissal with an unpaid suspension. The arbitrator also took the somewhat unusual step of holding that, in the event that the grievor were to engage in culpable misconduct within a fixed period of time, such misconduct would constitute just cause for discharge. This significant measure was arguably reflective of the gravity of the employee’s challenge to the employer’s efforts to manage the workplace during what the arbitrator described as an extremely difficult time.

Failure to follow employer protocols with respect to return-to-work following the onset of potential COVID-19 symptoms has also attracted significant sanction. In at least one such case, dismissal was upheld at arbitration. In Labourers' International Union Of North America, Ontario Provincial District Council And Labourers' International Union of North America, Local 183 v Aecon Industrial (Aegon Construction Group Inc.), an arbitrator upheld the dismissal of a unionized construction employee who had displayed a “deliberate and cavalier attitude” toward COVID-19 safety. While it is important to note that the decision to uphold the dismissal was supported by additional evidence of problematic conduct unrelated to COVID-19, the arbitrator was less than impressed by the employee’s attitude toward COVID-19 screening and to the employer’s policies, which had been put in place to protect the safety of the workplace.

Prior to attending to work, the dismissed employee had advised his foreman that he was experiencing diarrhea, and he was instructed not to report to work until cleared by the employer’s nurse. Since the nurse did not contact the employee for several days (over a long weekend), the employee simply attended at work a few days later. While the employee no longer suffered from his original symptoms, he had a runny nose. However, the employee reported no symptoms when completing the employer’s COVID-19 screening, and he later attended a team meeting.

The arbitrator held that this conduct had constituted a deliberate attempt on the part of the employee to circumvent the employer’s instructions, which displayed “total disregard” to the risks posed to both his co-workers and the employer’s operations. The arbitrator pointed out that, while the employee “technically” had no diarrhea symptoms when he had reported to work, it was “more than simple equivocation” not to flag that concern in the questionnaire and that the employee had also gone on to create a dangerous situation by attending a team meeting that day. The arbitrator held that the employee had put his personal interest in returning to work ahead of the risks he knew he posed, notwithstanding specific instructions to the contrary.

Awareness of public health responsibilities

There is at least some authority for the proposition that labour arbitrators may also be less inclined to believe that employees are not aware of the responsibilities surrounding public health efforts to control the spread of COVID-19 and that failure to acknowledge mistakes in this respect may attract significant disciplinary consequences.

In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), an employer providing security services dismissed an employee who had failed to self-isolate pending the outcome of what turned out to be a positive COVID-19 test and instead had reported to work. The employer had communicated the guidelines of the Public Health Agency of Canada to all employees earlier in the year, which included a requirement to self-isolate while awaiting the results of a COVID-19 test. The employee denied that she was aware of this requirement.

In upholding the employer’s decision to dismiss the employee, the arbitrator found that there was no ambiguity in what employees were required to do while awaiting the results of their test. The arbitrator noted that, by the time the employee attended at work, it would have been hard to believe that anyone would not have been aware of the public health expectations as to what to do after having been tested. The arbitrator also noted that the employee’s claim that she did not feel sick was “completely irrelevant.”

It should be noted that the arbitrator’s harsh approach in this matter may have been partially driven by the employee’s failure to show any remorse and what appeared to be an inability to appreciate the seriousness of the potential consequences of her conduct. Arbitrators may take a different approach in other cases in the presence of mitigating circumstances.

The above decisions suggest that labour arbitrators may give significant weight and consideration to the obligation of employers to implement measures and procedures to prevent the spread of COVID-19 and to see that these be respected. At least from the few decisions reported so far, it would appear that labour arbitrators may now also be less inclined to find claims of ignorance credible in a context where our Canadian news cycle has been overtaken by COVID-19-related information. These recent decisions also suggest that being dishonest or careless in the COVID-19 context may result in significant consequences for employees. That said, labour arbitrators have continued to make decisions based on the factual circumstances of each case, much as in pre-COVID-19 times, and a careful consideration of those circumstances will remain paramount for employers as they navigate disciplinary issues in the time of COVID-19.

For more information, see:

• Trillium Health Partners v. CUPE Local 5180, 2021 CanLII 127 (Ont. Arb.).
• Labourers' International Union Of North America, Ontario Provincial District Council And Labourers' International Union of North America, Local 183 v Aecon Industrial (Aegon Construction Group Inc.), 2020 CanLII 91950 (Ont. Arb.).
• Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A. No. 162 (Keller).

Giovanna Di Sauro is a labour, employment and human rights lawyer with Filion Wakely Thorup Angeletti LLP in Toronto. She regularly advises employers in matters involving grievance arbitrations, collective bargaining, employment policies and contracts, employment litigation, human rights and harassment claims, workplace accommodation, and investigations. She can be reached at 416-408-5513 or [email protected].