Behaviour during pandemic-related refusal deserving of suspension, not dismissal
A New Brunswick worker’s poor attitude during a failed work refusal during the pandemic warranted discipline but dismissal was excessive, an arbitrator has ruled.
The worker was hired in 2008 by Horizon Health Network, a New Brunswick health authority. He eventually became a staffing service agent at Horizon’s Regional Staff Scheduling Centre (RSSC) in Saint John. He worked in a partially enclosed workspace with cubicles containing four workspaces each.
When the COVID-19 pandemic reached Canada in March 2020, RSSC employees remained working onsite as the centre wasn’t equipped for remote working. It posted COVID-19 information and instructions on the entrance door to the building, including self-screening questions that helped employees determine if they should enter the building.
Employees who had COVID-19 symptoms were instructed to call an internal employee health provider and isolate until they received the result of a COVID-19 test. A positive test resulted in 14 days of isolation, while a negative test would allow the employee to return to work. Test results at the time took 48 to 72 hours.
An Ontario worker’s work refusal led to a suspension, an altercation, and a dismissal for breach of the employer’s violence and harassment policy.
Worker hesitant to go to work
On March 25, the worker arrived at work and noticed the signs. He had just found out that his girlfriend had been exposed to COVID-19 and had to get tested, so he wasn’t sure if he should enter. He called the director of the RSSC and she told him that if he wasn’t experiencing any symptoms then he should enter.
According to the director, she met the worker at the entrance and went through the screening questions with him. The worker hesitated when asked if he had been in contact with someone with COVID, but since the case wasn’t confirmed, she told him that he was fine to work.
Later that day, a colleague of the worker told the director that he was worried because the worker had told his co-workers that he didn’t think he should be working since he had been exposed to COVID. The director went to speak with the worker, who appeared upset and said that he didn’t think that he should be at work – which surprised her since they had gone through the screening questions. The discussion escalated and she told the worker to go home.
On March 31, the worker filled out a “right to refuse unsafe work” form, stating that “it is unsafe to expect employees to come to work at the RSSC, when the virus can be transmitted among asymptomatic individuals within a 14-day period.” He emailed the form to the union and his manager, but it didn’t reach his manager due to an error in the email address.
On April 14, the worker contacted the union and said that he had been off for nearly two weeks because he was under orders to self-isolate. He also emailed the joint health and safety committee (JHSC) to say that he hadn’t heard back about the form. The employee health department and the worker’s manager had not been informed of this, as the worker had only called a team lead and not the health department or his manager.
A worker’s refusal to attend a disciplinary meeting was not a refusal of unsafe work and the subsequent suspension wasn’t a reprisal, the Ontario Labour Relations Board ruled.
Work refusal process
Horizon reached out to the worker and told him that it was his responsibility to report and update the employer on his medical condition, to which the worker said that somebody should review the call he had made to the team lead.
Horizon reiterated his responsibility to inform management and the Occupational Health and Safety Act (OHSA) required him to be at the worksite to invoke his right to refuse work – although WorksafeNB changed this requirement for the pandemic. It said it needed to clarify some issues, so it instructed him not to return to work until a meeting was scheduled. However, the same day, the regional manager of labour relations told the worker that he was expected to return for his next scheduled shift on April 17.
The worker’s manager reviewed the worker’s work refusal and found that there weren’t reasonable grounds, as Horizon had provided training for safety practices and had regular cleaning and sanitizing. He referred it to the JHSC without informing the worker, and the JHSC reached the same conclusion.
The worker reported for work on April 17, but he was sent home.
A meeting was scheduled, but when the worker showed up he was told it had been cancelled because he had failed to confirm his attendance. It was rescheduled for April 23 in a room set up so contact with other employees could be avoided and the participants could be distanced.
The worker arrived for the meeting but refused to enter the building. Management discussed it with him in the parking lot, but he still refused so the meeting ended.
A worker didn’t demonstrate an intent to abandon her job, but her refusal to provide medical information was just cause for dismissal.
Job abandonment
Horizon decided to terminate the worker’s employment effective April 27 for his behaviour leading up to and during his work refusal, along with his refusal to meet to resolve things. The official reason for termination was job abandonment.
The union grieved the termination, arguing that the worker showed an intention to return to work and had made a legitimate work refusal.
The arbitrator noted that the first step of a work refusal under the OHSA requires the employee to immediately report their concern to their supervisor, who then must investigate with the employee. If the employee’s concerns aren’t resolved, then the worker can refer it to the JHSC.
In this case, the worker didn’t inform his manager, said the arbitrator, noting that the worker must have received a message that his email of the refusal form had not been delivered. However, the worker didn’t resend the email or inquire if his manager received it.
The arbitrator also found that there was no explanation as to why the worker inquired about the status of the form with only the JHSC and not his immediate supervisor, as this didn’t follow the “right to refuse” process set out on the form, which led to a delay.
In addition, the delay and disconnects between the worker, management, and the JHSC led to confusion, which the worker interpreted as Horizon becoming “a nemesis who would not want to find a solution to his concerns,” said the arbitrator, noting that the worker “failed to appreciate that the COVID pandemic had created a new and unforeseen situation not only for employees, but also for employers.”
An Ontario worker who used his medical restrictions to avoid jobs he didn’t want to do abandoned his job, an arbitrator ruled.
Situation handled poorly
The arbitrator noted that Horizon also handled things poorly, as the manager should have notified the worker about the rejection of his work refusal before referring it to the JHSC. It also should not have cancelled the first meeting just because the worker didn’t confirm his attendance, and management should have considered other options for the second meeting when the worker refused to go inside, the arbitrator said.
The arbitrator determined that the worker and Horizon both had responsibility for the way they handled the “right to refuse process”, but there was no evidence that the dismissal was because the worker invoked his right.
The arbitrator also found that job abandonment must be clear and unequivocal. The worker showed up for work on April 17 and was sent home, and he also showed up for both meetings. This did not demonstrate an intention to abandon his position, said the arbitrator.
The worker’s failure to follow work refusal procedure and disrespectful communication was insubordinate and deserving of discipline, but termination was excessive considering the worker’s 12 years of service and a lack of prior discipline, the arbitrator said, adding that Horizon did not apply progressive discipline.
“Standing alone, the [worker’s] misconduct, although offensive to the employer’s authority, does not warrant dismissal,” said the arbitrator. “By its very nature, it does not irreparably sever the employment relationship to the point where termination is the only option.”
Horizon was ordered to reinstate the worker with a one-month suspension on his record and compensation for lost wages and benefits, minus the suspension. The worker was ordered to provide a letter to Horizon apologizing for his disrespectful conduct. See Canadian Union of Public Employees, Local 813 v. Horizon Health Network, 2023 CanLII 12589.
