In Labourers' International Union of North America, Loc. 183 v. AECON Industrial, 2020 CanLII 91950 (ON LA) (Carrier), the discharge of an employee who attended work after exhibiting COVID-19 symptoms and contrary to his employer's direction was upheld. This decision offers a firm rebuke against conduct which potentially puts other employees at risk of contracting the virus, and provides employers with strong support for issuing significant discipline in response to that kind of misconduct.
The grievor in AECON Industrial was a 64-year old labourer at a nuclear power plant. On April 9, 2020, he called his foreman and said he was experiencing diarrhoea and would be late for work. The foreman advised him he could not attend work because diarrhoea is a COVID-19 symptom, and told him that the company nurse would contact him with further instructions. The grievor called back twice that day, and was again told not to attend work until he had heard from the nurse. Shortly thereafter, he stopped experiencing symptoms. He did not have a COVID-19 test.
By his next scheduled shift on April 14, 2020, the grievor still had not heard from the company nurse. He nonetheless decided to report for his shift. He did not have clearance from his employer or a healthcare provider.
When he arrived at work, the grievor completed a self-assessment screening questionnaire and declared he was not experiencing any of the listed COVID-19 symptoms. He then attended a morning meeting with his co-workers. At the meeting, his foreman asked him whether he had been cleared to return to work by the company nurse, and he answered in the negative. He also admitted that he had a runny nose in spite of his answers on the screening questionnaire. He was told to go home and self-isolate. He was subsequently dismissed from employment.
Arbitrator Carrier upheld the termination of the grievor's employment, finding that his conduct was worthy of the most severe sanction. The arbitrator rejected outright the grievor's explanation that he believed the employer's nurse forgot to contact him. He found that the grievor's actions amounted to a deliberate attempt to circumvent the company's instructions and, by attending work and failing to report his runny nose, he had displayed total disregard for the risk he posed to his co-workers. He further put those co-workers at risk by attending the morning meeting where he could potentially have spread the virus widely. The arbitrator chastised the grievor in light of the COVID-19 health crisis: "It simply defies credulity that in the midst of the current pandemic, he would not understand the risks he would pose at work ." He held that the grievor's conduct was deliberate and totally unacceptable and worthy of significant discipline.
Arbitrator Carrier noted there were no mitigating circumstances to favour the grievor. While the grievor was older, his tenure with the employer was only five years. In addition, he had received two suspensions in the weeks prior to his discharge for safety-related violations. Considering the grievor's recent track record in the workplace, Arbitrator Carrier was satisfied that the grievor "could not be trusted to avoid engaging in unsafe conduct in the future".
The AECON Industrial case provides useful guidance for employers managing the complicated health and safety risks created by the COVID-19 pandemic. First, the decision confirms that arbitrators are willing to find employees who violate company policies and risk exposing co-workers to COVID-19 to be deserving of significant discipline. Even where an employee has not violated a public health directive to self-isolate as in this case, he or she will be expected to adhere strictly to safety protocols and not take action which could lead to potential exposure in the workplace. Second, in the context of COVID-19, the employer's failure to follow its own procedures will not necessarily negate the employee's breach of policy. In this case, the fact that the company nurse did not call the grievor as promised does not appear to have prejudiced the employer's case or served as a mitigating factor in favour of the grievor. Third and finally, the decision serves as a reminder that health and safety are paramount considerations in the context of the pandemic, and employees will be held to a high degree of accountability to ensure a healthy and safe workplace for themselves and their co-workers.
Originally published by LexisNexis Labour Notes Newsletter
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