In a recent case, an arbitrator determined that an employer had just cause to terminate an employee who attended work and repeatedly, intentionally, and falsely reported that he was not experiencing symptoms of COVID-19.
As employers have adopted a number of COVID-19 screening protocols to help ensure the health and safety of employees and the public, this decision provides valuable insight into how dishonest employees may be disciplined.
In Johnson Controls Canada LP v. Teamsters Local Union 419, the employee/grievor worked for an employer who provided maintenance services to Humber River Hospital. In his role, the employee was routinely tasked with performing various duties throughout the hospital. As a consequence, he would potentially come into close contact with other employees, hospital staff, patients, and the public.
Following an investigation into conduct that took place at the beginning of the COVID-19 pandemic, the employer determined that the employee had attended work over the course of four days and falsely reported that he was not experiencing any symptoms of the virus. In spite of the fact that the employee had a cough, he nevertheless went to work and dishonestly filled out the hospital’s Daily Attestation Form by acknowledging that he had no COVID-19 symptoms. However, when his symptoms worsened, he called in sick and eventually tested positive. As a result of his conduct, other employees who came into contact with him were forced to isolate, thus causing a significant disruption in the employer’s operations.
On account of the employee’s dishonesty, the employer determined that the had violated the hospital’s COVID-19 infection control policies and placed the lives of many at risk. For those reasons, the employer felt there was just cause to terminate the employment.
Shortly thereafter, a grievance was filed by the union on behalf of the terminated employee. The union argued that the employer did not have just cause to terminate the employee because he reasonably believed that his symptoms were caused by allergies. Furthermore, the union emphasized how the grievor took immediate action upon realizing that his illness may have been something more serious. Upon concluding that he may have had more than mere allergies, he promptly called in sick, reported his symptoms, and got tested.
In light of this backdrop, the main issue for the arbitrator to determine was whether the grievor’s concealment of symptoms amounted to just cause for termination.
The Arbitrator’s Assessment of the Grievor’s Conduct
The arbitrator established that the grievor’s conduct during the early days of the pandemic amounted to a significant and serious breach of critical health and safety measures put in place to combat COVID-19. Furthermore, the need for employees to accurately report COVID-19 symptoms was especially important for individuals like the grievor, whose job required him to work closely with others and move throughout the hospital.
The arbitrator also emphasized that he did not think that the grievor intended to put others at risk by concealing his symptoms. Rather, the grievor legitimately believed that he did not have COVID-19, and simply attributed his symptoms to his allergies. However, the arbitrator acknowledged that this mistaken belief and the consequences flowing from it perfectly illustrated why the hospital requested information about symptoms. Indeed, an individual may very well “believe” that they do not have the virus, but the safety and well-being of others in the workplace should not have been jeopardized on account of those mistaken beliefs. Simply put, the symptoms ought to have been reported.
By concealing his symptoms in the way that he did, the grievor made it impossible for his employer or the hospital to assess whether he had allergies, or was instead infected with COVID-19. The arbitrator held that, if the employee had been honest about the way he was feeling, he would have been required to isolate and be tested prior to returning to the work. This in turn would have prevented him from coming into close contact with others and disrupting the workplace by requiring additional staff and employees to isolate and undergo testing.
The Employer had Just Cause to Terminate the Employee
For an employee to be terminated for just cause, they must have engaged in a form of misconduct so serious that it “strikes at the heart of the employment relationship.” In other words, the central question is whether the employee’s misconduct made the continued employment relationship “unviable”.
In the case at hand, the arbitrator focused on the fact that the grievor engaged in serious misconduct over the course of many days, all the while exposing numerous others to significant health and safety risks and disrupting the employer’s operations in the process. As such, the arbitrator determined that the employer did in fact have just cause to terminate the grievor for his misconduct.
The Bottom Line
As employers implement policies and protocols to help ensure their workplaces are safe during the COVID-19 pandemic, it is to be expected that some employees will try to bend the rules. Though these employees may not always have self-serving intentions in mind, the fact remains that their behaviour creates an unnecessary and significant risk for other workers and the public.
Employers should seek expert legal advice when deciding how to address an employee’s failure to abide by its COVID-19 policies or protocols. If you have any questions about how to handle such situations, please do not hesitate to contact us.