A recent Ontario arbitration decision, Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), provides employers with a useful authority when faced with addressing breaches of COVID-19 guidelines at the workplace.
Garda involved a termination grievance resulting from a breach of the employer's adopted COVID-19 guidelines. The employer required employees to isolate if they were waiting for results of a COVID-19 test. This restriction was found to have been breached by the grievor-employee.
The Arbitrator found the facts in the matter “uncomplicated”:
- 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 employees.
- Part of the guidelines required employees to isolate if they were waiting for results of a COVID-19 test. The parties acknowledged that employees were made aware of this requirement.
- On April 12, 2020, the employer was informed by the grievor that she had tested positive for COVID-19. It was determined, contrary to the assertions of the grievor, that she attended work on April 6, 2020 while awaiting testing.
- The grievor claimed she was not aware of the self-isolation requirement.
- The grievor's employment was terminated on April 23, 2020.
The Arbitrator found that the employer took the necessary precautions to ensure that all employees, including the grievor, were aware of its guidelines and those of the Public Health Agency. Further, the Arbitrator found there was no ambiguity with respect to what employees were required to do following a COVID-19 test: they were to isolate until they receive their test results.
The Arbitrator upheld the termination, finding that the grievor's evidence was unreliable, that COVID-19 was a serious matter (with the potential of causing death), and that the grievor showed no remorse for her actions.
Garda therefore serves as a reminder that where an employer has a well drafted and publicized policy, a breach of that policy may be the basis for discipline or termination. More specifically, Garda provides that where a policy is aimed at protecting the health and safety of employees and the public at-large, just cause dismissal may be warranted as a response to a policy breach; particularly where the employee does not show remorse.
Policy drafting is no easy feat. Employers are encouraged to carefully review their policies, ideally with legal counsel, to ensure the policies are clear, unambiguous, reasonably connected to the workplace, and therefore enforceable.
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