Another arbitral decision from Ontario has confirmed that dishonesty during COVID screening protocols can lead to termination for cause. While arbitration decisions are not binding on our courts, they do provide insight into the analysis that is likely to be undertaken when a similar set of facts is before the Court.
In Johnson Controls Canada LP and Teamsters Local Union 419, 2022 CanLII 40 (ON LA) the employee was terminated for cause on the basis that they had committed serious violations of the hospital’s COVID policies and in doing so had placed co-workers, hospital staff, patients and the public at serious risk. The employee was a technician who was performing maintenance work throughout a hospital. At the start of each shift, employees were required to attest that they were not experiencing any COVID symptoms using the hospital’s standard form. The dismissed employee had several COVID symptoms, which he did not report. His explanation for not reporting them was that he felt they were attributable to allergies. The employee attended four separate shifts where he was displaying COVID symptoms and in which he completed a false attestation. His colleagues told him to report his symptoms as required by hospital policy. Ultimately, the employee tested positive for COVID.
Following his termination, the union grieved, taking the position that there was no cause for the termination because the employee honestly believed that his symptoms were related to his allergies, not to COVID. The union further noted that as soon as the employee realized that he may be sick and that it possibly might be COVID he reported his symptoms, called in sick and got tested for COVID. The arbitrator disagreed, finding that in failing to report his symptoms and making multiple false attestations that he was not experiencing symptoms, the employee committed very serious breaches of an essential workplace policy that was intended to protect the health and safety of workers, patients and the public, in a hospital environment where the importance of such protections is paramount. The employees honest belief did not change the dishonesty and also deprived the employer and the hospital of the opportunity to assess the symptoms, the very purpose for the attestation.
This arbitration decision demonstrates that disciplinary action, including termination for cause, will be found to be appropriate in circumstances where employees are dishonest and fail to comply with COVID health and safety protocols. It underscores the seriousness with which COVID policies will be taken by triers of fact, particularly COVID policies that have as their purpose protection of co workers and the public. Dishonesty in reporting of vaccination status would likely be similarly viewed.
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