In a recent decision of Garda Security Screening Inc. v IAM, District 140 (Shoker Grievance),  OLAA No 162, an Ontario Arbitration Board upheld the termination of an employee who failed to abide by the employer’s isolation rule requiring an employee to isolate and not report to work while he or she is waiting for the results of a lab test for COVID-19.
The grievor worked for the employer, Garda Security Screening Inc., at Toronto Pearson International Airport.
On March 27, 2020, in response to the COVID-19 pandemic, the employer communicated the guidelines of the Public Health Agency of Canada to all of its employees. Part of those guidelines required employees to isolate if they were waiting for the results of a lab test for COVID-19. In other words, employees were not to report for work if they went for a test and were waiting for the results of the test.
On April 12, 2020, the grievor informed the employer that she had tested positive for COVID-19. The employer then undertook to identify other employees and parties who had been in close proximity to the grievor. The employer asked the grievor to write a statement with respect to her actions. In her statement the grievor advised that she was tested on April 6, 2020 and that she did not report to work on April 6, 7 or 8, 2020 while she was waiting for her results. The grievor was then advised that she was positive on April 12, 2020. The grievor maintained that no one told her and she was not aware that she was required to self-isolate.
Following further investigation, the employer determined that the grievor had in fact worked on April 6, 2020. The employer met with the grievor, and the grievor advised that she had not told the employer that she had gone for the test and that she attended work because she didn’t feel sick. During the meeting the employer showed the employee the bulletin requiring isolation, and the grievor acknowledged that she had seen the bulletin.
The Arbitration Board was satisfied that the employer took the necessary precautions to ensure that all employees – including the grievor – were aware of its guidelines and those of Public Health. The Arbitration Board found that the grievor was aware of these guidelines despite her assertions that she was not. Further, there was no ambiguity with respect to what employees were required to do following a COVID-19 test – they were instructed to isolate until they received the results.
In her evidence, the grievor stated that she returned to work because she did not feel sick. This was contradicted by both her written statement and logic, according to the Arbitration Board. She wrote that her doctor advised her to go for a COVID-19 test because she was working at the airport. The Arbitration Board found that even if the grievor was unaware of the isolation guidelines, her doctor advising her to take the test because she was working at the airport should have indicated to her the risk to others if she went to work infected. The Arbitration Board stated that “caution and good sense, if nothing else, should have dictated that she not return to work until she knew her medical status.”
The actions of the grievor were found to be a clear violation of the employer’s and Public Health guidelines. Her claim of not feeling sick was found to be absolutely irrelevant. She was required to isolate, as she knew, for the safety and health of others. She chose not to isolate, thereby putting countless others at risk of illness or death.
The grievor showed no remorse for what she did at the hearing, nor did she show concern about the potential consequences of her having returned to work. In light of the foregoing, the grievance was dismissed and the termination was upheld.
This decision is one of the first arbitration decisions addressing discipline arising out of the breach of employer policies implemented to address the health and safety concerns of COVID-19. It positively confirms an employer’s right to discipline employees for blatant health and safety violations wherein an employee is made clearly aware of the employer’s expectations.
The MLT Aikins labour and employment team would be pleased to help your organization with employee disciplinary matters and employment policies arising out of COVID-19.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.