March 10, 2021

Misrepresentations on the COVID-19 symptom-based screening questionnaire: gross negligence confirmed in arbitration

In a decision rendered on December 21, 2020, one of the first of its kind in Quebec, an arbitrator confirmed the dismissal of an employee for failing to honestly answer the COVID-19 symptom-based screening questionnaire, required by the employer at the start of every work day.

The facts of this case

The employer, a business qualified as an essential service within the meaning of the orders issued by the government in March 2020, was able to continue operating, despite the impossibility to comply with the public health guidelines on physical distancing. The employer then put in place a procedure aimed at mitigating the risks of contagion, which required employees to take their temperature and complete a COVID-19 symptom-based screening questionnaire at the start of each shift, otherwise, access to the plant was prohibited.

The employee, who worked on the packaging line and therefore close to several other employees, neglected to inform her employer that her spouse, with whom she lived, had been experiencing COVID‑19 symptoms for five days. She stayed home from work only when her spouse received a positive result for COVID‑19.

After meeting with the employee and her union representative, the employer noted the employee’s failure to comply with the procedure put in place and decided to terminate the employment relationship. The employee challenged her dismissal by arguing that essentially she took floating days as soon as her spouse received the positive result and that she herself had not contracted COVID‑19.

The arbitrator’s conclusion

From the outset, the arbitrator mentioned that to assess the reasonableness of the dismissal, one has to go back to the date on which the decision was taken. When the employer took action, our society was in the midst of the pandemic and no one really knew the extent of it. The arbitrator mentioned that the employer is entitled to take all means to preserve its operations and any measure necessary to ensure the health and safety of its employees.

The arbitrator also acknowledged that the employer had very few options in the circumstances, given the fact that it was impossible to implement the public health guidelines regarding two-metre physical distancing. He therefore concluded that requiring employees to take their temperature and complete a questionnaire before each shift was, in the circumstances, legitimate and even necessary. Given that the employee failed to comply with the guidelines and had no intention of being reinstated, the arbitrator dismissed the grievance and confirmed the dismissal.

Takeaways

Although the validity of the employer’s procedures with respect to the fundamental rights was not at issue, we note that the arbitrator nevertheless concluded that, in the circumstances, requiring employees to take their temperature and complete a daily questionnaire was legitimate and even necessary.

This decision is consistent with a recent Ontario arbitration decision in which an employee had been dismissed for attending work while awaiting the results of a COVID-19 test, contrary to the public health guidelines that the employer had clearly conveyed to the employees (see Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A. No. 162).

Our takeaways are as follows:

  • the employer must continue to take the necessary measures to meet its health and safety obligations, based on the specific realities of the business;
  • the employer must effectively communicate the guidelines to its employees;
  • government COVID‑19 guidelines existing at the time the employer makes a decision play a fundamental role in determining the reasonableness of a dismissal.

 

Author: Ione Deda Alves, Associate

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