COVID-19 has dominated Canadian life since March 2020. It has changed how we eat, shop, and socialize. So of course, the pandemic will also leave its mark on Canadian law. Our legal system is reactive in nature, resulting in a lag between current events and their subsequent judicial consideration. Nevertheless, we are finally starting to see how the first labour and employment cases have grappled with COVID-19 in the workplace.
One such decision is Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance) ( O.L.A.A. No. 162), an arbitral award centred on staff working at an airport. The Shoker Grievance stems from a bulletin entitled “Know the Difference: Self — Monitoring, Self — Isolation, and Isolation for Covid — 19 guidelines” (the “Health Bulletin”) which was distributed by Garda to its workers in late March 2020.
The Health Bulletin contained a requirement that Garda staff self-isolate, and not attend at work, if they were awaiting the results of a COVID-19 test. Both the employer and union agreed that all employees were aware of the self-isolation requirement post-distribution of the Health Bulletin.
Despite this, when the Grievor was tested for COVID-19 on April 6, 2020, she chose to attend at work that same day. She did not self-isolate as required by the Health Bulletin. Subsequently, the Grievor learned she had tested positive for COVID-19 and informed Garda of this fact on April 12, 2020. While the Grievor initially tried to claim that she had not worked at all post-test, this claim was later determined to be untrue. That the Grievor had worked post-test was not a fact in dispute at arbitration.
Garda dismissed the Grievor for cause, arguing that she had knowingly breached workplace health requirements and, in so doing, needlessly put her co-workers and the public at risk. In her defence, the Grievor took the position that: 1) she was not aware of the self-isolation requirement; and 2) she only attended at work on April 6th because she did not feel sick at the time.
Unfortunately for the Grievor, Arbitrator Brian Keller found against her with respect to both of her arguments. First, Arbitrator Keller determined that the Grievor had seen the Health Bulletin previously and was aware (or ought reasonably to have been aware) of the self-isolation requirement. Second, the Grievor’s own evidence undermined her claim of feeling healthy on April 6th. That same day she had twice been in contact with her family physician complaining of a headache and sinus problems, events which led to her having been tested for COVID-19 in the first place.
What is most striking with the Shoker Grievance is the language employed by Arbitrator Keller concerning the importance of all workers complying with employer and public health measures. To that end, Arbitrator Keller was scathing in his assessment of the Grievor’s conduct, writing:
…The grievor put at risk, by returning to work, her colleagues. She also put at risk other persons working at the airport with whom she came into contact. She also put at risk the general public flying from Pearson and, in turn, persons with whom those passengers would have had contact at their destination.
By way of illustration, one needs only look at the most recent situation in Kingston. A small number of employees at a beauty salon tested positive for the virus. They, in turn, infected a larger number of clients. Using contact tracing, it was eventually determined that approximately 700 people needed to be quarantined for fear that they could have contracted the virus and for fear that they, in turn, could have spread the virus to countless others.
The actions of the grievor were a clear violation of the employer’s and public health guidelines. Her claim of not feeling sick is absolutely irrelevant. She was required to isolate, as she knew, for the safety and health of others. She chose not to, thereby putting countless others at risk of illness or death.
The grievance was upheld and the Grievor’s dismissal for cause confirmed. Aggravating factors justifying the dismissal were: 1) the Grievor’s dishonestly with respect to claiming she did not attend at work on April 6th (when she had); 2) that the Grievor showed no remorse at arbitration for her actions; and 3) that Arbitrator Keller had no confidence that the Grievor now understood the importance of public health measures (such as self-isolating when directed). Dismissal for cause is no easy feat for employers to achieve. That Arbitrator Keller gave such a full-throated endorsement of the strict enforcement of public health measures in the Shoker Grievance, however, should provide employers with confidence when taking necessary action to ensure the safety of their staff and the public. All employers should now have in place COVID-19 control measures and regularly keep updated on the latest guidance from public health officials. We now know just how easily COVID-19 can spread; as such, the obligation is on all of us to help constrain its reach until more permanent solutions become available.
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