Can a breach of health and safety protocols for COVID be used as a cause for dismissal?
The two fundamental questions in wrongful dismissal cases are how much severance an employee will receive and whether there is legal cause to pay none at all.
Last Saturday I discussed the impact of COVID -19 on severance awards and came to a conclusion contrary to that being commonly, and loudly, asserted by lawyers acting for employees.
Employers can take comfort in what the law actually is.
This week, I will address whether breaching COVID-19 health and safety protocols is cause for dismissal.
With the pandemic dragging on seemingly interminably, many employees are increasingly lax in adhering to employers' COVID -19 rules. Inertia, fatigue and resistance prevail too often.
Juxtapose this with their employers, at risk of massive fines and negligence actions if they do not enforce workplace safety. Do they then have the leeway to fire such employees with impunity?
One Entrust Adult Inc. employee attended work the day after returning from the United States, despite his Edmonton-based employer's policy requiring a 14-day quarantine. When other workers became sick and tested positive for COVID-19, Alberta Health Services notified Entrust of these employees' test results and advised that this employee had travelled to the U.S. when it learned that he had come to the office right after being in the U.S. Entrust fired him for “intentionally endangering the health and safety of Entrust's clients and staff.”
The employee complained to the Alberta Labour Relations Board that his union failed to grieve his discharge. The Alberta board's vice-chair Jeremy Schick concluded that “the complainant's loss of employment resulted from his own ill-considered attempt to ignore important screening policies, lying by omission to his employer and putting others at risk.”
A clear signal that there will be no sympathy for employees breaching COVID -19 safety guidelines. Another union grieved Caressant Care's policy of COVID-19 screening every two weeks before the employees of the nursing and care centre would be permitted to continue to work. This policy was upheld even though there had never been a case of COVID-19 at that workplace.
As the arbitrator, Dana Randall, stated: “given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option,” adding that “a positive test is of immense value to both employees and the home. A positive test leads to identification, isolation, contact tracing and the whole panoply of tools used in combating the spread of the virus.”
This further underlined the recognition that employers are permitted to take necessary actions to protect the health of their workplace.
In yet another decision, a Garda Security screening officer at Toronto Pearson Airport attended work the day after taking a COVID -19 test because she claimed to feel no symptoms.
Garda had clearly laid out the public health guidelines to its employees, including the need to isolate while waiting for the outcome of a test. When Garda learned of her attendance, it discharged her. That dismissal was upheld at arbitration.
Given that we are dealing with a risk to the lives of employees, and that of the general public, even the more employee-friendly arbitrators (relative to judges) are finding that flaunting COVID -19 guidelines is cause for discharge. We have not yet seen court decisions, but they will surely take the same approach. Employers should adopt COVID -19 safety protocols, ensure their employees are made aware of them and dismiss those who flaunt them and risk the health of their coworkers. Doing any less could render them liable to actions from any employee who contracts the virus. Financial Post
Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is The author of six books including the Law of Dismissal in Canada.