The Very Serious Employment Consequences of Breaching COVID-19 Safety Protocols
June 7, 2021
June 7, 2021
The problems and challenges which the COVID-19 pandemic has created for employers are significant.
It is encouraging to see third-party decision-makers doing what is in the public interest and providing support to employers as they try to uphold COVID-19 safety protocols in their workplaces.
At least two arbitration cases out of Ontario have upheld the discharge of employees who chose to disregard the COVID-19 rules and policies of their respective employers. 
Now, a recent case from Alberta – a decision of the Alberta Labour Relations Board – provides insight into how labour boards might respond in cases where COVID-19 safety protocols have been deliberately flouted.
In Re Retail, Health Care and Service Employees Union, CLAC Local 301,  A.L.R.B.D. No. 31, the complainant brought a duty of fair representation complaint against his certified bargaining agent, the Retail, Health Care and Service Employees Union, CLAC Local 301.
By way of background, the complainant was an employee of Entrust Adult Inc., an employer operating a group living facility for disabled persons. In April 2020, with cases of COVID-19 infection and transmission on the rise, the employer implemented strict COVID-19 rules and policies at its operations to protect its employees and vulnerable residents.
After returning from a holiday in the United States in May 2020, the complainant chose not to disclose to his employer that he had travelled internationally. He clearly understood that the employer’s COVID-19 protocols required him to do so. He returned to work contrary to company policy.
A few days after returning to work, the complainant developed COVID-19 symptoms and tested positive for the virus. The employer was made aware of the complainant’s positive test result and learned of his trip south of the border. It responded by terminating his employment for just and reasonable cause and the union grieved.
After discussion between the employer and the union, the grievance was withdrawn. The complainant then filed a complaint that the union had breached its duty of fair representation.
Decision of the Alberta Labour Relations Board
In determining whether there was a breach of the duty of fair representation, the Labour Relations Board noted that “[the] question here [was] whether the Union [had] made a reasoned judgment as to the lack of chance of success of the Complainant’s grievance” and “whether the Union [had] put its mind to the merits of the claim and took a reasoned position”.
The Board considered the totality of the union’s conduct. It found that the union had investigated the situation and determined that the complainant had attended at work in spite of his clear understanding of the employer’s policy. The complainant was dishonest in failing to disclose his international travel and was considered by the employer to have committed a serious breach of policy and employment offence. The union’s conclusion that there would be no success at arbitration was reasonable.
The Board concluded that the union’s representation of the complainant “was without discrimination, arbitrariness, bad faith or serious negligence”. The complaint was without merit because the complainant’s discharge from employment was the result of his own ill-considered actions in ignoring important screening rules, lying by omission to his employer, and putting others at risk.
Takeaways for HR professionals
This case has a couple of key takeaways for HR professionals.
First, it confirms that discharge will generally be the appropriate disciplinary response for breach of COVID-19 safety protocols and other important health and safety rules, even for an employee with 11 years of service and no prior record of discipline. The case reinforces the approach taken in at least two other arbitration cases decided earlier in the pandemic.
Second, the case suggests that where termination of employment for just and reasonable cause is among the range of reasonable disciplinary responses to COVID-19-related misconduct, a third-party decision-maker will be unlikely to give the employee further leeway, substitute its judgment for that of the employer, and tinker with the disciplinary response.
As many employers continue to struggle with the problems and challenges created by the pandemic, it is encouraging to see support for them as they try to enforce the rules and policies implemented to protect their workforce and customers and other visitors to their workplaces.
 See, in this respect, Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance),  O.L.A.A. No. 162 (Keller) and Labourers’ International Union of North America v. Aecon Industrial, a Division of Aegon Construction Group Inc. (Wynne Grievance),  O.L.A.A. No. 292 (Carrier).
Katelin Dueck is an articled student at the Vancouver-based employment and labour law boutique of Roper Greyell LLP. She is interested in all areas of workplace law, including employment, labour and workplace human rights and privacy law.
James D. Kondopulos is a founding member and partner (practising through a law corporation) at Roper Greyell. He was named by Lexpert as one of Canada’s leading lawyers under 40 and is ranked as a leading employment lawyer in the Canadian Legal Lexpert Directory. He is also recognized as a leader in the area of employment and labour law in Chambers Canada, Who’s Who Legal and Best Lawyers International, Canada. James can be reached by e-mail at email@example.com.
For more information about James and Katelin and the work they do at Roper Greyell, please visit www.ropergreyell.com.
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