COVID-19-Related Misconduct is Nothing to Sneeze At

Previously printed in the LexisNexis Labour Notes Newsletter. 

In a decision issued on May 10, 2021[1], Arbitrator Paul Love dismissed a discipline grievance related to COVID-19-related misconduct.  The discipline was issued at a time when, in the words of the arbitrator, “there was a dearth of arbitral jurisprudence” with respect to such misconduct.

The Union grieved the ten-day suspension of a long-service employee (16 years of service) with no discipline record after he deliberately coughed into the vehicle of a co-worker, apparently as a practical joke.

More specifically, on April 14, 2020, in the early days of the pandemic and after returning to work from a four-week COVID-19 quarantine, the grievor, as a “practical joke”, waved down a co-worker who was operating a vehicle, walked up to the vehicle and opened the passenger door, and coughed at him.

The co-worker asked the grievor to move away, at which time the grievor announced that he had been off work for COVID-19.  The co-worker asked whether the grievor had in fact been sick, to which the grievor responded, among other things, that he had been off work for a few weeks, was no longer contagious and, if the co-worker were to become sick, the co-worker would be his “science experiment”.  The grievor added, “Don’t make me use my biological weapons.”  The visibly shaken co-worker promptly reported the misconduct to the employer.

On May 13, 2020, following its investigation, the employer issued the grievor with the ten-day suspension.  In issuing the suspension, the employer took into account the provincial safety measures in place at the time as well as its own COVID-19 safety rules, which included protocols around social distancing and hygiene.  The employer also took into account the circumstances of the pandemic known at the time, including the fact that people were dying on a daily basis and the virus was believed to be spread by coughing.  In addition, the employer considered reports in the media that individuals had been charged with assault for similar conduct.  The employer concluded that but for the grievor’s length of service and discipline-free record, it would have terminated his employment.

The Union grieved the suspension.  It alleged that the discipline was excessive and sought that it be set aside and replaced with a verbal warning.

Arbitrator Love considered the grievor’s misconduct to be a serious breach of the employer’s safety rules.  In upholding the discipline, the arbitrator reasoned:

This incident occurred near the start of the COVID-19 pandemic.  This was a time of considerable uncertainty and a heightened degree of concern amongst District employees and the public at large.  As of the time of this incident, Canadians were dying of COVID-19 and a vaccine had not yet been developed.  In the District, students were not attending classes in person.  Staff, such as the grievor, were involved in removing playground equipment to minimize the risk of children or others congregating and contracting COVID-19 on District property.
…

At the time that the employer assessed the discipline, there was a dearth of arbitral jurisprudence about discipline for COVID-19 related misconduct. That is still the case.  [The District] did some research – largely newspaper reports of outrageous COVID-19 incidents such as coughing or spitting on other persons.  She found that these types of incidents were being treated seriously by the police in the criminal law context as an assault.  She also considered the impact of such conduct on the employer’s reputation, as the District is subject to public scrutiny.

Arbitrator Love also considered the impact of the misconduct on the co-worker, who did not testify.  The grievor’s evidence in this respect was that he had intended a practical joke.  The arbitrator found that the grievor’s motive did not improve the situation for him:

It is clear that the grievor intended some sort of practical joke.  [The co-worker] did not take it as a joke.  In assessing whether conduct is in fact humorous, it is usually viewed from the point of the reasonable recipient of such conduct: Dartmouth Ambulance and CUPE, Local 3264 (1994), 39 L.A.C. (4th) 236.  In my view, no reasonable recipient would have viewed this as humorous, in light of the grievor’s statement that he had had COVID-19 and the context of COVID-19 in April of 2020.

This would have been an objectively worse case if the grievor had intended to infect [the co-worker] with COVID-19.  However, in my view, the grievor’s motive does not mitigate his misconduct.
[Emphasis added.]

In the circumstances, the grievor’s “humour” was clearly all but lost on any reasonable recipient.  While the co-worker was not infected as a result of the misconduct, the arbitrator reiterated the principle that in order to assess the appropriateness of discipline for a safety breach, it is not necessary for the employer to prove that the damage anticipated by the safety rule actually materialized.

Arbitrator Love found that in the context of a pandemic, the fact that the grievor’s action constituted a single breach of the employer’s safety rules did not mitigate against the level of discipline issued:

Often, in assessing the issue of whether discipline was inordinate, in the circumstances, an arbitrator considers whether the conduct is repetitive.  Repetition is not an important factor when during a pandemic an employee deliberately breaches a safety protocol designed to prevent any transmission.  A single incident may be sufficient to cause the harm.
[Emphasis added.]

Arbitrator Love expressed the view that discharge for just and reasonable cause may in fact have been warranted in response to the grievor’s misconduct.  He added that “this [was] a serious matter” and “the grievor [was] lucky that the employer did not terminate him”.  While the grievor was less than candid during the employer’s investigation and at the hearing, the arbitrator noted that he did have a long period of discipline-free service and showed contrition at the hearing.

Key employer takeaways

• While his decision was made in the context of the pandemic as it was known in April to May 2020, Arbitrator Love has laid the groundwork for the assessment of COVID-19-related misconduct in British Columbia.
• Employers may consider serious discipline for any employee who breaches COVID-19 safety rules, notwithstanding the long service and discipline-free record of the employee. Such misconduct is a standalone disciplinable offence and there does not need to be any consideration of whether actual damage has arisen out of the misconduct.
• The severity of the pandemic and its impact is no laughing matter. Jokes or threats related to COVID-19 infection or transmission will not be tolerated in the workplace.

[1]  Board of Education of School District No. 39 (Vancouver) v. Canadian Union of Public Employees, Local 407 (Linde Grievance), [2021] B.C.C.A.A.A. No. 68 (Love).

Rebecca Klass is a lawyer at the Vancouver-based employment and labour law boutique of Roper Greyell LLP.  She practises in all areas of employment, labour and workplace human rights law.  In addition to working as a litigation lawyer, Rebecca advises clients on all issues that arise in the workplace.  She can be reached at rklass@ropergreyell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.