Worker with strep throat returned to workplace shortly after declaration of global pandemic
An arbitrator has upheld the dismissal of an employee who returned to work early from sick leave without notifying his employer during the early days of the COVID-19 pandemic.
The employee, a material handler, started working for a manufacturer and supplier of carbon black additives in February 2015. His disciplinary record included a suspension from March 7–11, 2020 for failing to promptly report a workplace injury.
On Mar. 11, 2020, a clinic diagnosed him with strep throat. The doctor issued him a note excusing him from work until Mar. 18, 2020. The COVID-19 worldwide pandemic was declared on Mar. 12, 2020.
On Mar. 16, 2020, the employee returned to the workplace and worked the evening shift without clearance. The next morning, the plant manager reviewed the doctor’s note and asked the employee to explain himself. The manager then instructed him to leave the workplace until further notice.
The employer terminated the employee on Mar. 20, 2020 for misconduct. It found that he acted recklessly by coming to work while feeling ill and prioritized his monetary interests over his co-workers’ health and safety amid a pandemic. The employer noted that it lacked COVID-19 protocols at the time because the pandemic was still in its early stages.
The union challenged the termination on the employee’s behalf and asked for his reinstatement. The union argued that he followed his doctor’s advice and came to work when he was no longer contagious with strep throat.
The union also stressed that the employee displayed no COVID-19 symptoms and that the employer had no pandemic protocols in place at the time of his return.
Grievance dismissed
In Birla Carbon Canada Ltd. v Teamsters Local Union No. 879, 2024 CanLII 80299 (ON LA), the arbitrator dismissed the grievance and concluded that the employee’s termination was justified and was not excessive, given the circumstances and his conduct.
The arbitrator found reinstatement of the employee inappropriate based on the lack of trust between him and his former employer, his short service in the company, and his history of safety infractions.
The arbitrator accepted that the employee did not have COVID-19 at the time, did not lie about his symptoms, and did not intentionally seek to harm anyone. However, the arbitrator found that his lack of remorse, his prior disciplinary record, and his refusal to accept responsibility for his actions weighed against him.
The employee’s decision to return to work without notifying his employer, especially when he was still feeling unwell, violated basic workplace safety principles, the arbitrator said. He deprived the employer of its right to assess whether his return posed any risk to others, particularly as a pandemic was beginning to escalate globally, the arbitrator added.
The arbitrator rejected the employee's claim that he was unaware of the developing pandemic. Public awareness of COVID-19 and its risks was “widespread and notorious” by that time, the arbitrator said.
