Ontario case shows importance of following COVID-19 guidelines
If we have learned one thing in 2020, it is that we should self-isolate while we are waiting for our COVID-19 test results. But what if an employee fails to isolate and shows up at work? The employer may have just cause to dismiss them.
In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), arbitrator Brian Keller found that the grievor, a screening officer at Toronto's Pearson International Airport, lacked "good sense" when she failed to self-isolate while waiting for her COVID-19 test results, despite the public health guidelines and clear company policy requiring self-isolation. The employer had communicated the guidelines to all employees, including the guideline to self-isolate when waiting for results.
On April 12, 2020, the employee informed her employer that she tested positive. In her statement, she wrote that she was tested on April 6, that she did not work on April 6, 7 or 8, that she was informed of her positive test results on April 12, and that she was not aware of the requirement to self-isolate.
Further investigation revealed that she had, in fact, worked on April 6.
During the investigation (as well as the hearing), the employee took the position that she did not inform her employer about the COVID-19 test and attended work because she did not feel sick. When the employer showed her the COVID-19 guidelines, including the requirement to self-isolate, the woman acknowledged having seen it. Her employment was terminated on that same day.
The arbitrator dismissed the grievance based on the following key factors:
- the employer had clear policies in place that were communicated to all employees, including the grievor
- the employer made employees aware of the public health guidelines
- the grievor was aware of the guidelines and policies
- there was no ambiguity with respect to what employees were required to do while waiting for their COVID-19 test results (self-isolate)
- the grievor's actions were a "clear violation of the employer's and public health guidelines"
- the grievor placed countless individuals at risk of contracting the virus
- the employee was dishonest, lacked remorse, and lacked an understanding of the potential consequences of her actions.
Notably, Keller commented on the general awareness of the COVID-19 pandemic and the requirement to self-isolate, and the seriousness of the public health risks for failure to self-isolate:
"I believe it is fair to say that what was happening with respect to COVID-19 and the pandemic had been, by April 6, the number one item in the news and the number one item being talked about generally from at least the beginning of March. It is hard to believe that anyone was not aware of the expectations from public health in Ontario and Canada about what to do after having been tested. But, even if the grievor had not been so generally aware, she and her coworkers had been specifically made aware of what to do by the guidelines issued by the employer which were brought to the attention of all employees…
“The grievor put at risk, by returning to work, her colleagues. She also put at risk other persons working at the airport with whom she came into contact. She also put at risk the general public flying from Pearson and, in turn, persons with whom those passengers would have had contact at their destination…
“The grievor, at the hearing, showed no remorse for what she did, or concern about the potential consequences of her having returned to work. This is, to say the least, troubling and gives me no confidence that she understands the potential consequences of her action."
As Stuart Rudner, author of You’re Fired! Just Cause for Dismissal in Canada says: just cause is not a lost cause. Despite the high threshold, summary dismissal will be upheld in appropriate circumstances.
This decision highlights the importance of having a clear policy in place and ensuring that it is properly communicated to employees. In addition, it is critical to conduct an investigation before dismissing for cause.
The investigation in this case helped the employer because the employee's dishonesty and lack of remorse were revealed through the investigation process and continued during the hearing, which the arbitrator obviously held against her. This decision also shows that in cases where the breach of policy relates to health and safety risks to others, especially in light of the global pandemic, the breach will likely be considered serious.
Employers would be wise to not only have clear policies in place, but ensure that they are properly communicated to employees. Where there is a breach or potential breach of policy, employers should conduct an investigation before proceeding with discipline or dismissal.