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There is little doubt that COVID-19 has been an extraordinarily difficult time. From the loss of family members and exhausted front-line workers to the spike in unemployment and severe disruption of personal lives, the pandemic has been one of the most challenging times in the modern era.

With the pandemic continuing to drag on, the temptation towards non-compliance with the rules and regulations aimed at reducing the spread of the virus is to be expected. A refusal to follow the rules, however, can result in serious negative consequences to one’s employment.

Employers across Canada have specifically demonstrated a willingness to take firm action in response to employees who do not comply with COVID-19 directives, whether non-compliance is direct or a result of deceitful behaviour. The following accordingly reviews a real-world example of non-compliance throughout COVID-19 and the related consequences.

Support for Firing Employees That Do Not Follow COVID-19 Rules

A recent employment case demonstrates that employers’ actions to discipline and/or dismiss employees for a lack of compliance with COVID-19 rules can be upheld.

In other words, an employee may have difficultly convincing a court to overturn their dismissal and/or proving that they have been wrongfully dismissed where they do not follow COVID-19 policies and/or related government rules and regulations.

The case of Garda Security Screening Inc. v. IAM, District 140 involved a screening officer at Toronto Pearson International Airport who did not comply with a directive to self-isolate while waiting for the results of his COVID-19 test.

The employee had specifically taken a COVID-19 test but failed to isolate while awaiting the results of the test. Following an investigation into the matter, the employer proceeded to terminate the employee’s employment for cause.

The arbitrator in the case determined that the proven facts were sufficient to justify a “for-cause” termination of employment. The decision was based on a range of findings, including the following:

  • The employer had clear policies in place that were communicated to all employees;
  • The employer took reasonable steps in proceeding to dismiss the employee, including conducting a sufficient investigation of the matter;
  • The employee was aware of the guidelines and policies and clearly violated them;
  • The employee placed countless individuals at risk of contracting the virus; and
  • The employee was dishonest and did not demonstrate remorse for the actions.

All told, the arbitrator simply was not convinced that there was sufficient reason to overturn the termination of employment, and the dismissal was confirmed and upheld.

While the case involved a unionized worker, the decision is useful and we expect it to apply more broadly as it demonstrates a lack of tolerance by decision-makers to non-compliance in relation to public health matters.

The seriousness of COVID-19 non-compliance

This case demonstrates the seriousness of COVID-19 violations at work. While employees may be growing weary of continued restrictions in connection with the pandemic, the fact is that not complying can lead to the irreversible loss of your employment.

This case is also noteworthy because it resulted in the dismissal of a unionized worker, a role that is generally more difficult to terminate than a non-unionized worker. Therefore, the fact that this had a serious impact even in a unionized context demonstrates how serious decision-makers take matters relating to public health.

Accordingly, we encourage both employers and employees to maintain open communication with respect to workplace policies, particularly those relating to COVID-19. This includes understanding the investigation process should the employer allege a breach of workplace health and safety policies. Not only will this provide clarity to employees, but may also strengthen an employer’s justification of a “for-cause” termination of an employee’s employment.

If you believe that you have been wrongfully dismissed and/or are seeking advice in relation to COVID-19 matters in the workplace, please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or via email at mlahert@sultanlawyers.com.

 


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