Written on behalf of Peter McSherry
In a recent British Columbia arbitration decision, an arbitrator upheld an employee’s 10-day suspension for deliberately coughing into a co-worker’s vehicle during the COVID-19 pandemic.
Employee Suspended for Coughing Into Co-Worker’s Vehicle
The unionized employee worked for the Vancouver Board of Education as an apprentice gardener.
In early March 2020, the employee had developed COVID-19 symptoms and remained at home from March 12, 2020 to April 8, 2020. He self-isolated in the basement of his mother’s home, although he was never tested for the virus.
Following his return to work, on April 14, 2020, while working at an elementary school, the employee waived down a co-worker who was driving a vehicle to make a delivery. The employee went up to the vehicle, opened the passenger side door, leaned in and coughed directly inside. The co-worker told him that his action was not funny and asked him to move back.
The employee refused to move back and informed the co-worker that he had just been off from work for two weeks because he had COVID-19 symptoms.
The employee was later interviewed about the incident by the employer. The employee denied deliberately leaning into the vehicle while coughing and stated that his actions were intended as a joke.
On May 13, 2020, the employee was suspended for 10 days. In the employer’s letter advising him of the suspension, the employer wrote:
“COVID-19 is not an issue that should be taken lightly or joked about. COVID-19 can lead to death. The Vancouver Board of Education has taken measures to follow the protocols of the Provincial Health Officer and you have violated the safety measures that were put in place. Your actions were egregious, unnecessary, and showed a complete lack in judgement. You caused more anxiety and stress for your colleague at time when anxiety and stress are already heightened.”
Subsequently, the union filed a grievance on behalf of the employee, claiming that he had received excessive discipline for the incident. While the union conceded that the employee merited some discipline for his conduct, it contended that his suspension should be replaced by a verbal warning.
Arbitrator Upholds Suspension
After reviewing and weighing all the relevant factors, the arbitrator concluded by stating:
“In all the circumstances, however, I find that the discipline imposed was not inordinate. The grievor’s conduct was foolish, insensitive and deliberate violation of safety rules the employer put into place to protect employees from the risk of COVID-19. In my view the employer made substantial effort to protect its employees from the spread of COVID-19. The seriousness of the discipline reflects the seriousness with which the employer sought to protect its employees from the impacts of the pandemic.
This misconduct occurred during the first wave of COVID-19 where there was significant concern by District employees and concern of this employer to protect its employees. The grievor engaged in conduct which could have transmitted COVID-19 to a fellow employee. People have died from COVID-19. The grievor could not know for certain whether he was contagious, nor could he have any idea whether [the co-worker] might have died as a result. The grievor did not apparently direct his mind to these risks. Fortunately, the risk did not materialize.”
The arbitrator went on to explain that in cases of discipline for a breach of a safety, it is not necessary for the targeted harm to materialize. Specifically, in this case, the arbitrator noted:
“In this context, it was not necessary for [the co-worker] to develop COVID-19, in order for the employer to discipline the grievor. The harm arises from the prohibited conduct of approaching [the co-worker] within the social distance, deliberately coughing and touching of the door handle and interior of the vehicle.”
In fact, the arbitrator opined that the matter was serious enough that the employee had been “lucky” the employer had not terminated him in the circumstances.
Ultimately, the arbitrator therefore held that the employee’s suspension was not excessive in the circumstances. In the result, the arbitrator thus upheld the 10-day suspension and dismissed the grievance.
As a unionized worker, you do not have the option of taking your employer to court. If you have a complaint against your employer, it must go through the union grievance process. The Ministry of Labour offers very little help in this area, so it is important to seek the advice and counsel of an experienced employment lawyer. At Peter A. McSherry Employment Lawyer, I can help you prepare and file a complaint while also providing advice to help ensure your case is not lost in the shuffle. I have been practising employment law in Ontario ever since being called to the Bar in 1997. Contact me today by phone at 519-821-5465 or by e-mail to schedule a consultation.