Over the past year, workplaces throughout the world have drastically changed the ways work is organized and performed to respond to the COVID-19 pandemic. Employers have had to quickly implement new and comprehensive workplace protocols to respond to the risk of the spread of COVID-19 in the workplace. These protocols are generally informed by public health guidelines and identify COVID-19 related risk factors which affect employees’ clearance to attend work and regulate what employees can do while in attendance. Employees and unions, and in particular frontline workers, have similarly been required to understand and work within a rapidly evolving landscape of workplace policies, public health advisories and government regulation.
There have now been a few arbitration decisions where a unionized employee’s failure to adhere to the employer’s COVID-19 safety protocols has resulted in discharge. This article will summarize three cases and offer some commentary regarding developing trends and discuss factors that ought to be considered in this developing area of law.
Garda Security Screening Inc. and IAM, District 140
In a decision released in July 2020, Arbitrator Keller considered whether an airport employee’s failure to adhere to COVID-19 safety protocols provided the employer with just cause for termination. In a brief award, Arbitrator Keller determined that it did.
The grievor worked for Garda at Pearson International Airport. In late March 2020, the employer circulated Public Health Agency of Canada’s guidelines regarding COVID-19, including a requirement that any person awaiting the results of a COVID-19 test should isolate until they learn the results of the test. On April 6, 2020, the grievor was tested for COVID-19 but attended work thereafter, on the same day. The grievor explained that she did so because she did not feel sick on April 6. The grievor stayed home from work on April 7 and April 8. Six days later, the grievor informed the employer that she had tested positive for COVID-19.
Arbitrator Keller concluded that the employer had unambiguously communicated the requirement that employees not attend work following a COVID-19 test, and found that, although the grievor stated she was not aware of such a requirement, it had been communicated to her. His reasons also identified that the requirement to isolate after a COVID-19 test was well known to the public by early April 2020 and, accordingly, the grievor’s actions had been a clear violation of both the employer’s policy and public health guidelines. The arbitrator considered the grievor’s lack of remorse as a factor which supported the employer’s decision. The fact that the grievor worked at an airport was also an important consideration to the arbitrator, given the risks posed not only to her colleagues but to other airport workers and the public flying from the airport and those they would thereafter contact. Accordingly, the termination was upheld and the grievance dismissed.
LIUNA OPDC, Local 183 and Aecon Industrial, A Division of Aecon Construction Group Inc.
The Aecon case deals with facts arising around the same time as in Garda (early April 2020). In Aecon, Arbitrator Carrier also found that the employer had just cause to terminate an employee who attended work in contravention of the employer’s COVID-19 protocol and direction to stay home.
In this case, the grievor was a construction worker at the Darlington Nuclear Generating Station, where he had been working since 2015. In March 2020, the grievor acquired a disciplinary record for two occasions involving safety infractions; the first resulted in a verbal warning and one-day suspension; the second led to and a written warning, a one-week suspension and a meeting with management. Neither of these disciplinary interventions were grieved by the Union.
On April 9, 2020, the grievor was scheduled to work, but called his foreman because he was experiencing diarrhea. The grievor was advised to stay home and wait to hear from the company nurse because diarrhea was a symptom of COVID-19. When the grievor called back twice that day because he had not yet been contacted by the nurse, he was told on both occasions that the employer would contact him and that he should not attend work. The grievor’s next scheduled shift was on April 14, 2020, by which point his diarrhea had long since resolved. However, the grievor had developed a runny nose that he attributed to allergies.
On April 14, 2020, the grievor attended work even though he had not yet received a call from the employer. At arbitration, the grievor said he did so because he thought that he may have been overlooked by the employer and was worried he would be subject to further discipline for missing work.
At the beginning of his shift, the employer’s COVID-19 screener asked the grievor the questions on the employer’s comprehensive screening questionnaire (which included the question “do you have a runny nose?”) and the grievor answered “no” to all questions. The grievor did not inform the screener about the fact that he had been waiting to hear from the employer about whether he was cleared to return, and proceeded to a morning meeting with coworkers. It was later revealed that the grievor had not been cleared by the employer to return to work. He was thereafter terminated for cause.
Arbitrator Carrier’s reasons endorse the employer’s decision to terminate with cause. He provides four primary reasons for his decision: 1) the grievor deliberately failed to report a COVID-19 symptom and failed to report that he had been told to stay away from work due to COVID-19 precautions which was “totally unacceptable;” 2) the grievor created a dangerous situation by attending the team meeting and exposing his colleagues to risk; 3) the lack of mitigating factors, including his short service with the company; and 4) the existence of recent, safety related disciplinary infractions on his record. The arbitrator rejected the union’s argument that the grievor attended at work due to his fear that if he did not, he might receive further discipline. Instead, the arbitrator characterized the grievor’s attitude as “deliberate and cavalier,” concluding that very significant discipline was warranted.
Trillium Health Partners and CUPE Local 5180
Arbitrator Jesin was seized to determine two grievances relating to the same hospital employee, being one regarding a five-day suspension from March 2020 and a termination from July 2020.
The circumstances regarding the five-day suspension relate loosely to COVID-19 protocols: the arbitrator concluded that the grievor had made a video recording of a meeting with management in which COVID-19 protocols were being discussed following the grievor’s request for additional PPE. The arbitrator found the grievor had recorded and disclosed the video and other information to a news outlet without the hospital’s consent. Arbitrator Jesin concluded that the grievor did so with an intent to “paint an inaccurate picture of the Hospital’s approach to Covid [sic]” and that it “was thereby designed to embarrass the Hospital and undercut its authority.” Accordingly, he upheld the five-day suspension.
The facts giving rise to the grievor’s termination relate more closely to the hospital’s COVID-19 protocols and the grievor’s lack of adherence to same. In response to COVID-19, the hospital had implemented a rule prohibiting communal social gatherings in the hospital as well as the sharing of food. In July 2020, the grievor, along with other employees, participated in bringing pizzas to the hospital following the union’s local election. The hospital’s COVID-19 screener informed the grievor, along with other employees, that they could not bring the pizzas into the hospital, but the grievor and others ignored the direction and brought the pizzas in anyhow. That same day, a vendor attended the hospital without a mask. When the hospital’s COVID-19 screener asked the vendor to wear a mask, the grievor, who was in the area, intervened on the vendor’s behalf and complained about the hospital’s protocols making it difficult for employees to do their job. The screener alleged that the grievor used profanity but the grievor denied the allegation.
Arbitrator Jesin was “troubled by” the grievor’s conduct in July 2020 in that the conduct showed resistance to the authority of the hospital and its effort to control the spread of the virus. The arbitrator observed that other employees involved in the pizza party did not receive such harsh penalties but found that the disciplinary record showed that the grievor had shown a pattern of disrespect for the hospital.
Arbitrator Jesin decided to reinstate the grievor without compensation for the approximately six-month period between the date of termination and the decision and ordered the grievor’s termination to be replaced with a suspension for time served. The arbitrator also implemented “last chance” terms, stipulating that if the grievor engaged in any disciplinable conduct in the future the specific penalty would be discharge and the arbitrator would be seized of any associated grievance.
Observations and commentary
In each of the cases, the grievor was terminated primarily due to a failure to adhere to the employer’s COVID-19 related protocols. In each case, the arbitrator either explicitly or inferentially recognized and confirmed the importance of such protocols. Further, the unions did not pursue arguments challenging the reasonableness of the COVID-19 policies implemented by the employers, likely because the unions recognized the importance of such policies in protecting the health and wellbeing of their members in the workplace during the pandemic, and because the policies appeared to comply with the reasonableness principles articulated in KVP Co. Ltd. Had these cases involved a challenge to the substance of COVID-19 related protocols, where, for example, the employer’s COVID-19 protocol was discriminatory or out of step with public health guidelines, the reasonableness of the employer’s protocols might have been a factor.
What the unions in these cases predominantly took issue with was whether termination was a proportionate response to the grievors’ breaches of workplace COVID-19 protocols. Just cause for summary dismissal arising from employee misconduct is a very high standard that has historically been difficult to establish on a single incident alone, absent exceptional circumstances.
Indeed, while the relevant terms of an employer’s COVID-19 policy may have been prima facie “reasonable,” it does not follow that any and every breach of a COVID-19 policy should give rise to just cause for termination, or even just cause for discipline.
Instead, arbitrators are empowered to, and ought to, consider all relevant factors in determining whether just cause for discipline or discharge is made out and, if it is, whether there are mitigating factors which make it appropriate to substitute an alternate penalty.
As the Aecon case illustrates, in the context of the current pandemic, employees can easily find themselves stuck between a rock and a hard place. On one hand, they frequently face financial and performance pressure to attend work despite feeling unwell or fearful for their health and safety. On the other hand, if an employee attends work when their employer’s policy dictates they ought not to, they could face serious discipline, up to and including termination for cause. This challenging dynamic is further exacerbated in circumstances where employees lack paid sick days.
To be sure, there is good reason to fear COVID-19 and to seek to prevent its spread, including through workplace COVID-19 protocols. For those of us whose jobs adapt easily to remote work settings (including lawyers and arbitrators), it may be difficult to fully appreciate how fraught it can be for frontline, low-income and essential workers to navigate the ever-changing landscape created by COVID-19, particularly when balancing financial imperatives and the health, wellbeing and childcare needs of their families.
Accordingly, although these early decisions might seem to elevate the importance of workplace COVID-19 protocols and endorse harsh penalties for their breach, it must not be forgotten that the realities of life during the COVID-19 pandemic are nuanced, challenging and ever-changing. There is plenty of room for a variety of facts and factors to enter the factual matrix and give rise to vastly different outcomes, even where an employee has breached an employer’s COVID-19 policy.
Relevant factors for employers (and arbitrators) to weigh in assessing discipline might include: the degree to which the grievor’s behaviour in fact posed a risk to others in the workplace, based on epidemiological evidence; whether disciplinary consequences for the breach of the policy have been imposed in a uniform manner; the type of workplace and level of contact the employee has with colleagues and the public; whether the policy is consistently enforced; the duration or frequency of the grievor’s breach; whether the employer had specifically advised the grievor to stay at home; the measure of intentionality in the grievor’s actions; the measure of understanding or remorse shown by the grievor in response to the discipline; and whether there are compelling personal circumstances relating to the grievor’s personal, health and/or family life which influenced the grievor’s actions. As ever, disciplinary record (and a lack thereof) and length of service are also relevant factors. An emerging factor may also be the amplified impact a termination has on a person during a pandemic, and indeed the loss of a unionized job (and with it, likely, paid sick days).
While some of these factors were not apparently canvassed in the cases reviewed herein, many of the factors that were canvassed did not generally favour the union’s case. For example, none of the grievors showed compelling accountability or remorse for having breached the policies or offered particularly compelling personal circumstances behind their decision; the grievors were generally short service, and in two of the cases (Aecon and Trillium Health), the grievors had a relatively recent disciplinary record which included similar types of behaviour. Rather than setting a standard for the strict and uncompromising enforcement of COVID-19 protocols, these cases may simply demonstrate outcomes where the relevant factors weighed in favour of harsher outcomes for employees.
Just cause cases are always dealt with on a case-by-case basis. While this trio of early COVID-19 and just cause related cases confirms the importance of COVID-19 protocols in the workplace, it might give the false impression that an employee’s act of contravening an employer’s COVID-19 protocol will generally warrant summary dismissal. It is worth pausing to take a closer look: the foundations of just cause for discipline remain intact and have not been superseded by workplace COVID-19 protocols. Nor have these protocols undermined an arbitrator’s jurisdiction to substitute lesser penalties when just cause for discipline is made out. Arbitrators continue to have the broad jurisdiction to hear and consider all relevant factors in the assessment of just cause and appropriate penalties.
While there is a collective fear of COVID-19 and an imperative to quell its spread, termination, or, colloquially, workplace capital punishment, is a serious consequence for employees. The public health imperative may properly weigh heavily in the balance in assessing just cause, but each case will ultimately turn on the weighing of all relevant factors. These factors may shift and evolve as the virus continues to put unique pressures on workers and their families.
About the Authors
Meg Atkinson is a partner at Kastner Lam LLP. In her diverse labour and employment law practice, Meg represents trade unions, employees and a handful of progressive employers. Meg also practices other aspects of workplace law, administrative law and election law.
Ruth Wellen is an associate at Kastner Lam LLP. She was called to the Ontario Bar in 2020. Her practice is focused on labour and employment law, civil litigation, human rights, and criminal/regulatory defence.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.
  OLAA No. 162 (Keller) (“Garda”).
 2020 CanLII 91950 (ON LA) (Carrier) (“Aecon”).
 2021 CanLII 127 (ON LA) (Jesin) (“Trillium Health”).
 In a recent employment case, the Court considered that COVID-19 may impact, and increase, the length of reasonable notice at common law: Yee v Hudson’s Bay Company, 2021 ONSC 387 at paras 20-22.