Written on behalf of Peter McSherry
In a British Columbia decision, an employee’s complaint was dismissed after he claimed he was fired for not showing up to work due to COVID-19 concerns.
Employee Refuses to Go to Work Due to COVID-19 Concerns
The employee began his employment with the employer as a bartender on December 26, 2020.
Although the employee was scheduled for a shift on March 16, 2020, he called his manager in the morning and left a message saying he did not feel comfortable going into work due to the COVID-19 pandemic and asked for the day off. He also told his manager that his understanding was that he could not be penalized for refusing to come into work due to health and safety concerns.
Two days later, on March 18, 2020, the employee was dismissed by the employer.
As a result, on March 20, 2020, the employee filed a complaint with the Workers’ Compensation Board of British Columbia (the “Board”). He claimed that the employer took discriminatory action against him after he refused to show up for work due to COVID-19 safety concerns, contrary to British Columbia’s Workers Compensation Act (the “Act”).
In response, the employer stated that the employee had been dismissed for other reasons related to the employee’s work performance and behaviour.
Board Finds Against Employee
The Board first explained that under the ss. 47 and 48 of the Act, a prohibited action is defined as any act or omission by an employer that adversely affects a worker with respect toany term or condition of employment, including dismissal. The Act further protects workers from prohibited actions for “exercising any right or carrying out any duty in accordance with the [Occupation Health and Safety] provisions, the regulations or an applicable order”.
The Board then explained that in order to succeed in his claim, the employee had to establish a prima facie case of a prohibited action by the employer. To do so, the employee had to prove that the employer had taken an action that fell within the meaning of “prohibited action”, that the worker had asserted a right under the Act, and that there was a causal connection between the two.
While the Board found that the employee had proven the first element because he had been dismissed, which is a specific prohibited action under the Act, it determined that the claim failed on the second component.
It stated that workers are only protected where they engage in a legitimate exercise of their rights under the Act. In this case, the Board stated:
“The worker in the present matter believes that by informing the manager by message […] that he felt uncomfortable coming into work due to COVID-19, that he was protected by the “right to refuse unsafe work” provisions. I find that in essence, the worker refused to show up for work. […]
Similarly, a worker cannot simply decline to show up for work. In other words, the right to refuse unsafe work does not give a worker the right to not show up for work.”
The Board also noted that the employee could have followed short-term protective measures if he had gone to work, including regular hand-washing, wearing gloves, physical distancing and wearing a mask or a scarf. In the Board’s opinion, the employee was under an obligation to attend work and resolve his concerns with the manager. Finally, the Board found that the employee had not reported specific unsafe conditions in the workplace as is required under legislation, as he had merely voiced a general concern.
As a result, the Board dismissed the employee’s complaint.
The Law in Ontario
While this case was decided under British Columbia legislation, Ontario’s Occupational Health and Safety Act (“OHSA”) prohibits employers from penalizing workers in reprisal for obeying the law or exercising their rights.
Under section 50 of the OHSA, an employer cannot:
- dismiss (or threaten to dismiss) a worker;
- discipline or suspend a worker (or threaten to do so);
- impose (or threaten to impose) any penalty upon a worker; or
- intimidate or coerce a worker…
because a worker has:
- followed the OHSA and regulations;
- exercised rights under the OHSA, including the right to refuse unsafe work;
- asked the employer to follow the OHSA and regulations.
If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.