In a recent grievance arbitration decision, Johnson Controls Canada LP and Teamsters Local Union 419, an Ontario arbitrator upheld the dismissal of an employee for breaching workplace COVID-19 policies. The decision provides reinforcement to employer COVID-19 policies and procedures and the ability to discipline or dismiss in the event of a serious breach.
The employee, Lyncon Williams, worked for Johnson Controls Canada LP. (the “Employer”) until he was dismissed for just cause on June 24, 2020. Mr. Williams was a Facilities Technician and worked at Humber River Hospital (the “Hospital”), where the Employer provided maintenance services.
Between March 20 and March 25, 2020, during the early onset of COVID-19 in Ontario, Mr. Williams attended work on four different shifts without reporting any COVID-19 symptoms on the Hospital’s daily screening form, despite experiencing COVID-19 symptoms, including a persistent cough. Finally on March 26, 2020, rather than go into work, Mr. Williams called in sick and subsequently tested positive for COVID-19.
Following an investigation, the Employer determined that, by failing to report his COVID-19 symptoms, Mr. Williams had committed serious violations of the Hospital’s COVID-19 infection control policies, which had been adopted by the Employer in its provision of services and communicated to employees on multiple occasions. As a result, the Employer dismissed Mr. Williams for just cause, concluding that he had placed his co-workers, Hospital staff, patients, and the public at serious risk, including risk of death.
The union grieved that Mr. Williams was discharged without just cause. The union argued that Mr. Williams failed to report his symptoms because he genuinely believed that his persistent coughing was related to his allergies. In the alternative, the union argued that in all the circumstances, even if some discipline was warranted, the penalty of discharge was excessive, particularly given Mr. Williams’ long record of service.
The arbitrator found that Mr. Williams’ failure to report his symptoms as required by the Hospital’s daily screening form amounted to multiple and very serious breaches of an essential workplace policy intended to protect the health and safety of workers, patients, and the public, in a hospital environment where the importance of such protections was paramount. The arbitrator also found that Mr. Williams’ claim that his cough was “more of a throat clearing” was contradicted by the evidence of multiple witnesses, who had indicated that Mr. Williams was persistently coughing while at work.
The arbitrator dismissed the grievance and upheld the dismissal. In dismissing the grievance, the arbitrator considered aggravating factors justifying the dismissal, including Mr. Williams’ prior discipline for breaches of health and safety rules and for falsifying records. Given the seriousness of the breach, the fact that it was repeated over the course of several shifts, and Mr. Williams’ record of discipline for similar misconduct, the arbitrator concluded that the Employer had just cause for discipline and that discharge was appropriate in the circumstances.
Takeaways for Employers
This decision, along with similar arbitration decisions that have been released in previous months, suggests a trend towards arbitrators upholding dismissals for breaches of COVID-19 policies, especially in health care settings where there are vulnerable patients and the risk of contracting and transmitting COVID-19 is higher. While not necessarily binding in the non-union context, these arbitration decisions may be persuasive on courts and should provide employers with some degree of confidence in their ability to discipline, or even potentially dismiss for cause, an employee who flagrantly breaches workplace COVID-19 policies in a manner that introduces potential safety risks to the workplace. Employers should continue to monitor trends in the law in relation to COVID-related dismissals, as it is likely we will continue to see these types of cases be adjudicated in 2022.