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You are here: Home / Health and Safety / Violating COVID-19 public health guidelines = Just cause

By Doug MacLeod, MacLeod Law Firm | 2 Minutes Read January 12, 2021

Violating COVID-19 public health guidelines = Just cause

I have received many calls from employers asking what to do if an employee refuses to follow COVID-19 public health guidelines. In one case, an arbitrator upheld the discharge of a unionized employee who did not follow COVID public health guidelines.

I have received many calls from employers asking what to do if an employee refuses to follow COVID-19 public health guidelines.

Union employees

In one case, an arbitrator upheld the discharge of a unionized employee who did not follow COVID public health guidelines.

In the Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), decision, the employee, a screening officer at Pearson International Airport in Toronto, was fired in April 2020 when she did not self-isolate while awaiting a  COVID-19 test result. In particular, she reported to work after being tested because she said she did not feel sick. Six days later she informed the employer she had tested positive for COVID-19. Initially, she claimed she was not aware the guidelines required her to self-isolate but later she admitted to receiving the Public Health Agency of Canada COVID-19 guidelines which included a requirement to self-isolate. The arbitrator concluded the employee must have known the consequences of spreading COVID and that she put her co-workers and the flying public at risk. In coming to this decision the arbitrator noted that the employee showed no remorse for her actions. 

Non-union employees

I am not aware of any cases involving the termination of a non-union employee for refusing to follow COVID-19 public health guidelines.

An employer is generally justified in dismissing an employee for just cause when the employee’s misconduct is “sufficiently serious that it struck at the heart of the employment relationship.” When making this determination, a judge generally applies the following three part test:

1. Determine the nature and extent of the misconduct

I think most judges would conclude that placing others health & safety at risk is serious misconduct.

2. Consider the surrounding circumstances

When deciding whether termination is justified (as opposed to a lesser form of discipline) a judge will look at mitigating factors such as length of service, disciplinary record, and whether the person apologized for the misconduct. A judge will also look at aggravating factors such as whether the person lied to the employer about the misconduct and whether the person was remorseful.

3. Decide whether dismissal was warranted

Does the punishment fit the crime? Some adjudicators believe that termination is the capital punishment of employment law. Was the misconduct sufficiently serious that it struck at the heart of the employment relationship?

Final note: It is generally very difficult for an employer to prove just cause — particularly for long service employees. But violations of health & safety rules particularly if the violation puts others at risk is one situation where I think just cause is relatively easier to prove.

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Doug MacLeod, MacLeod Law Firm

Employment and labour lawyer at MacLeod Law Firm
For the past 30 years, Doug MacLeod, founder of the MacLeod Law Firm, a Canadian labour and employment law firm, has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
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Latest posts by Doug MacLeod, MacLeod Law Firm (see all)

  • Violating COVID-19 public health guidelines = Just cause - January 12, 2021
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Article by Doug MacLeod, MacLeod Law Firm / Business, Employee Relations, Employment Standards, Health and Safety, Union Relations / COVID-19, employment law, just cause, just cause dismissal, Just cause termination, termination Leave a Comment

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About Doug MacLeod, MacLeod Law Firm

For the past 30 years, Doug MacLeod, founder of the MacLeod Law Firm, a Canadian labour and employment law firm, has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

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