A recent decision from Arbitrator Brian Keller in Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance),  O.L.A.A. No. 162 demonstrates that failing to follow COVID-19 directions may be just cause for termination of employment.
- The grievor was a screening officer at Toronto's Pearson International Airport
- The employer, Garda Security Screening Inc., communicated the guidelines of a public health policy which required employees to isolate if they are waiting for the results of a COVID-19 test. In other words, the employee is not to report to work if they have gone for a COVID-19 test and are waiting for the results of that test.
- On April 12, 2020 the employer was informed by the grievor that she had tested positive for COVID-19.
- The grievor was asked to write a statement with respect to her actions. She wrote that she was tested on April 6, 2020 and that she did not work on April 6, 7, or 8 while waiting for her test results.
- Following further investigation, the employer determined that, contrary to her statement, the griever worked on April 6.
- The employer terminated the grievor's employment for attending work while waiting for the results of a COVID-19 test, particularly because she was aware of the guidelines that prevented her from attending work while a test was pending.
- The union grieved her discharge.
Arbitrator Keller dismissed the grievance for the following reasons:
- The grievor signed an attestation confirming that she as aware of the employer's Code of Ethics.
- At the time the grievor was tested, it was fair to say that the COVID-19 pandemic had been the number one item in the news. It was 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. Even if the grievor was not generally aware, she was informed by the employer.
- The grievor put many people at risk by returning to work, including her coworkers and the general public.
- The grievor's actions were in clear violation of both the employer's and public health guidelines. Her claim that she did not feel sick was not relevant. She knew that she was required to isolate for the safety and health of others.
- The grievor did not show any remorse for her actions at the hearing, nor did she show concern about the potential consequences of her actions. Arbitrator Keller concluded that he had no confidence that she understood the potential consequences of her actions.
Importance of Decision for Employers
This case may be the first in a line of many cases that deal with an employee's refusal to follow COVID-19 guidelines. If the decision of Arbitrator Keller is any indication of how other arbitrators will handle similar situations, employees might not been shown much forgiveness in the era of COVID-19.
This case demonstrates the importance putting in place clear health and safety protocols, and communicating those protocols to all employees.
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Originally Published by Crawford Chondon & Partners, December 2020
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