Dismissal For Cause Upheld For Failing To Follow COVID-19 Guidelines

We have frequently been asked what an employer is supposed to do if a staff member does not follow COVID-19 guidelines. We now have an arbitral decision in which summary dismissal was found to be appropriate after a screening officer at Pearson International Airport in Toronto was found to have lied about the fact that she attended at work while awaiting the results of her COVID-19 test.

As we regularly remind our clients and readers, whether or not just cause for dismissal exists will depend on many factors and will not only be decided based on the misconduct in question. Courts and arbitrators will take a contextual approach, which requires consideration of all relevant factors.

In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), the key fact and factors were:

1. All employees were advised of the Public Agency Health of Canada’s guidelines regarding COVID-19;
2. The guidelines required that employees isolate while waiting for the results of a lab test for COVID- 19;
3. The grievor was tested on April 6th;
4. The grievor initially stated that she stayed off work on April 6, 7 and 8 while awaiting the results of her test;
5. The employer discovered that the grievor’s statement was false and that she was at work on April 6th; and
6. The grievor was unremorseful when confronted, and again during the arbitration hearing, and insisted that she attended at work because she didn’t feel sick.

The arbitrator considered all the factors, including that it was inconceivable that the grievor would not have been aware of the consequences of spreading the virus and that she put her colleagues and others, including the flying public, at risk. This, combined with her lack of remorse, led to a finding that there was just cause for dismissal.

Every case will be decided based upon its own particular facts, so while this is a helpful decision, one should not assume that every situation where an employee fails to follow the guidelines will warrant summary dismissal. If you are an employer considering discipline or dismissal, speak with an Employment Lawyer before making a decision that could lead to liability. And if you are an employee that has been disciplined or dismissed, you should get proper legal advice to ensure that your rights have not been breached. Feel free to contact us and make arrangements to speak with a member of our team.