The recently decided case in New Brunswick of CUPE, Local 3226 and Kevin Cook v Town of Quispamsis, 2021 CanLII 43139 (NB LA) provides clarification for employers imposing discipline for employees who refuse to cooperate with COVID-19 screening processes.
In this case, the grievor notified his employer that he felt ill and would not be coming into work. A member of management called the grievor to review the employer’s COVID-19 “screening questions” with him. Management explained that if the grievor had any COVID-19 symptoms he would not be permitted to return to the workplace without a negative test result, and was required to identify the workers he had been in contact with in the days leading up to his symptoms. During this initial call, the grievor became irate and refused to answer the questions.
In subsequent meetings with the employer, the employer advised employees about how shifts and lunch breaks would be organized as further directives regarding COVID-19. At one point, the grievor walked out of the meeting, yelling profanities. In another interaction, the grievor challenged his supervisor to a “one-on-one” conversation outside of the workplace.
The Employer engaged in progressive discipline throughout these incidents leading up to a multiple-day suspension, which was part of the subject of this grievance.
The arbitrator found that certain elements of the grievor’s conduct—including walking out of meetings—might not on their own amount to a three-day suspension, but other circumstances could. For example, challenging his supervisor to a “one-on-one” conversation outside of the workplace as part of his irate attitude in these workplace COVID-19 measures. In those circumstances, the Arbitrator held that the Employer had reasonable grounds to impose discipline.
For employers, the helpful takeaway is that this decision recognizes progressive discipline being founded on the belief that discipline will better achieve its corrective purpose if penalties are imposed on a progressive basis for repeated infractions. It also allows the concerned employee the opportunity to remedy his/her conduct, and it will also avoid any claim that the employee lacked any warning of the seriousness with which the employer regarded the misconduct.
PooranLaw will continue to monitor legal developments related to employee refusal to cooperate in COVID-19 screenings in the workplace. In the meantime, if you require legal assistance in determining how these new rules apply to you or your organization, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
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