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.
Doug MacLeod, MacLeod Law Firm
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