In Garda Security Screening Inc v IAM, District 140 (Shoker Grievance) [Shoker Grievance], an arbitrator considered whether an employee’s failure to follow an employer’s COVID-19-related workplace policies amounted to cause for termination of employment.
Facts
The grievor, Namjot Shoker, worked for Garda Security Screening Inc. (“Garda”) until she was dismissed for cause on April 23, 2020. Ms. Shoker had worked at Toronto’s Pearson International Airport, where Garda provided airport security and screening services.
In late March 2020, Garda communicated the guidelines of the Public Health Agency of Canada to all employees (the “Guidelines”) in response to the COVID-19 pandemic. The Guidelines required employees to stay home and isolate while waiting for results of a COVID-19 test.
On April 12, 2020, Ms. Shoker informed Garda that she had tested positive for COVID-19. Ms. Shoker claimed that she was tested on April 6, and that she did not work while waiting for her test results. Following further investigation, Garda determined that, contrary to Ms. Shoker’s assertions, she did work on the day of her test.
Garda dismissed Ms. Shoker for cause, arguing that she was aware of the Guidelines and knowingly disregarded them, and that her actions put at risk the health of her coworkers, others working at the airport with whom she was in proximity, and the travelling public.
The union grieved Ms. Shoker’s dismissal. Ms. Shoker argued that she attended work because she did not feel sick. While she acknowledged that she had seen the Guidelines, she denied being aware of the requirement to isolate.
Decision
The arbitrator dismissed the grievance and confirmed Ms. Shoker’s dismissal for cause.
The arbitrator found that Ms. Shoker had been aware or ought to have been aware of the Guidelines, which were unambiguous with respect to its requirement for employees to isolate while awaiting COVID-19 test results. The arbitrator noted that “what was happening with respect to … the pandemic had been, by April 6, the number one item in the news … It is hard to believe that anyone was not aware of the expectations from public health in Ontario and Canada about what to do after having been tested”. Even if Ms. Shoker was not generally aware of the Guidelines, the arbitrator found that she ought have been made aware through her employment, as Garda had brought the Guidelines to the attention of all of its employees.
The arbitrator also found that Ms. Shoker’s claim that she did not feel sick on April 6 was “absolutely irrelevant”, as she knew that she was required to isolate for the safety and health of others, regardless of whether she was symptomatic, and chose not to. In any event, Ms. Shoker’s claim of good health was contradicted by evidence that she had contacted her family doctor twice on that day to complain of headaches and sinus issues, which led to her doctor’s advice that she be tested for COVID-19 because she was working at the airport. Even if Ms. Shoker had not been made aware of the Guidelines, this advice indicating that she was being sent for the test because she was working at the airport should have indicated to her the risk to others if she went to work if infected. As the arbitrator stated, “caution and good sense, if nothing else, should have dictated that she not return to work”.
In dismissing the grievance, the arbitrator considered aggravating factors justifying the dismissal, including Ms. Shoker’s lack of remorse or concern about the potential consequences of her having returned to work. The arbitrator concluded that he had no confidence that she had come to understand the consequences of her actions.
Takeaways for Employers
This decision confirms the employer’s ability to discipline—including, potentially, dismissal for cause—an employee to ensure the health and safety of their workforce and the public, where the employee has clearly been made aware of workplace health and safety policies. This decision confirms that an employer may also potentially satisfy the requirements for discipline and potentially a just cause dismissal where an employee violates public health guidelines that are well-established and prevalent in the media.
However, as a best practice, employers should ensure to have a COVID-19 pandemic policy in place that clearly outlines health and safety expectations for all employees, along with potential consequences for violating expectations. Along with a COVID-19 pandemic policy, employers should ensure to take proactive steps to regularly and clearly communicate health and safety expectations to employees, particularly as public health guidelines continue to evolve.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
