Employee’s ‘ill-considered’ attempt to ignore COVID-19 screening led to firing: board

Law360 Canada (April 16, 2021, 8:25 AM EDT) -- A former employee of a group living facility for disabled persons in Alberta who travelled to the United States and was subsequently diagnosed with COVID-19 has had his dismissal upheld by the provincial labour relations board.

The man, who was unidentified in the decision, had been employed as a community support worker for 11 years with a clean disciplinary record. In May 2020, he decided to take a trip to the United States which he did not disclose to his employer. Upon his return he said he had no symptoms of COVID-19 and was never told he had to self-isolate.

His employer had earlier brought in a health screening policy and staff questionnaire, which included a temperature check and questions about whether the person had travelled outside Canada over the past 14 days. But he claimed it was routine for staff to pre-fill the tracking sheet with the questions on it not being asked. For his part, he stated he did not lie about his international travel because he was not actually asked about it.

The man later tested positive for COVID-19 and was fired. A grievance was filed, but his union, the Christian Labour Association of Canada (CLAC) withdrew it, feeling it would not be successful if brought before an arbitrator. He then took the union to the board, saying it had breached its duty of fair representation by failing to advance his grievance. He also said he had been targeted for dismissal by the employer because of his seniority, race and concerns he has about the union, rather than what he had done.

But Alberta Labour Relations Board (ALRB) vice-chair Jeremy D. Schick dismissed the man’s complaint, writing the union had acted reasonably.

“It is clear to the Board that the Complainant’s loss of employment and the Union’s decision not to grieve was not based upon any of the factors the Complainant wishes to blame for his situation, but result from his own ill-considered attempt to ignore important screening policies, lying by omission to his Employer, and putting others at risk,” he wrote.

David Myrol, a labour and employment lawyer at McLennan Ross, said the decision was important because it “illustrates a deep-seated frustration held by many judges and tribunals towards people who are reckless or indifferent to the spread of COVID-19.”

“I would say that his case was an absolute loser — the union recognized it and so did the board,” he said. “The result is not surprising whatsoever and I think it sends a clear message to workers who know about the protocols that they are expected to follow and if they fail to do so, they do so at their own peril.”

A spokesperson for CLAC said the union could not comment on the case.

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