In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance) [2020] O.L.A.A. No. 162 (Garda Grievance), a labour arbitrator dismissed a grievance pertaining to the for-cause dismissal of a unionized employee who continued to work at an airport while awaiting COVID-19 test results.  The arbitrator determined that the grievor was aware of and violated her employer’s guidelines and Public Health Agency of Canada’s COVID-19 guidelines (Guidelines) when she went to work after being tested for COVID-19 and while waiting for her results, rather than self-isolating as she was required to do.  The arbitrator concluded that these actions justified her for-cause dismissal. 

Background

On March 27, 2020, the employer shared with its employees the Guidelines, which require isolation while waiting for a COVID-19 test result.  On April 6, 2020, the grievor was tested for COVID-19 but did not tell her employer.  On April 12, 2020, the grievor was informed that she tested positive and on that day she advised her employer. Although during an investigation the grievor claimed in a written statement that she did not work following her test on April 6, 2020, the employer determined that the grievor did in fact continue working. 

When the employer met with the grievor on April 23, 2020, the grievor stated that she:

• Attended work and did not inform her employer that she had been tested on April 6, 2020, because she did not feel sick;

• Had seen the Guidelines, which require isolation while waiting for test results.

The employer dismissed the grievor for cause because, although she was aware that for the health and safety of others she was required to isolate, she chose not to in clear violation of the public health Guidelines and the employer’s own guidelines. 

Decision of the Arbitrator

Upon dismissing the grievance, the arbitrator noted:

• The employer took all necessary precautions to ensure that all employees were aware of the Guidelines, as well as its own health and safety guidelines;

• There was no ambiguity that following a COVID test employees were required to isolate;

• The employee’s claim that she returned to work because she did not feel sick was “contradicted by both her written statement and logic”:  the employee’s written statement indicated that she called her family doctor after she began taking medication he had prescribed her, and he advised her to get a COVID test because she was working at the airport;  

• Although given the extensive media coverage of the pandemic it was hard to believe the grievor’s claim that she was unaware of public health expectations regarding what to do after being tested for COVID, she had been made specifically aware of what to do by the employer’s guidelines, which were brought to the attention of all employees;

• The grievor was aware of the consequences of spreading the virus if she was infected; by returning to work she put her colleagues at risk of illness or death, as well as passengers flying from the airport and those with whom they would be in contact at their destinations;

• Although she knew that for the health and safety of others she was required to isolate, the grievor chose not to in clear violation of the Guidelines and the employer’s guidelines; and   

• It was troubling that the grievor showed no remorse for her actions or concern for their potential consequences. 

Bottom Line for Employers

The Garda Grievance puts employers on notice that if they take steps to make their employees aware of the Guidelines, and their own guidelines pertaining to COVID-19, and that employees are expected to follow them, they may dismiss on a for-cause basis an employee who chooses to violate them.  Adjudicators will support an employee’s for-cause dismissal if the employee chooses to put their colleagues or others at risk of becoming ill or of dying from COVID-19, in violation of public health and employer guidelines.