COVID-19 Update – Coughing Is No Joke: Deliberately Coughing on Coworker During Pandemic Leads to 10-Day Suspension
Case law supporting serious discipline for breaches of COVID-19 safety protocols continues to mount. In a recent, Arbitration Decision out of British Columbia, a 10-day suspension for an employee was upheld where the employee in question deliberately coughed on a co-worker as what he claimed was a “joke”.
In this case, the Grievor, a long service school employee with a clean disciplinary record, approached a co-worker who was making a delivery at the school in a van. The Grievor opened the passenger side door, leaned into the vehicle and coughed, without covering his mouth.
When the driver of the vehicle said that was not funny and asked the Grievor to move back, the Grievor retreated but told the driver that he has just been off work for two (2) weeks and had all the symptoms of COVID-19, but was not tested. After the driver proceeded with his delivery, the Grievor approached the driver again and affirmed that he had had all the symptoms of COVID-19 but that he wasn’t contagious anymore, that the driver could not be infected and if he were it would be like a “science experiment” and made reference to “biowarfare”.
When interviewed about the incident the Grievor confirmed the incident occurred but minimized his actions and claimed they were intended as a joke. The Grievor apparently apologized by text to the driver but didn’t disclose this to the employer. The Grievor subsequently wrote another apology that he shared with the employer, but didn’t take any steps to provide to the Grievor. As such, the apology was viewed as insincere and not sufficient to mitigate the seriousness of the misconduct or moderate the discipline that was appropriate.
The union conceded that the Grievor’s conduct did warrant some discipline, however, the union submitted that grievor’s willingness to apologize, his good service record and lack of prior discipline should be mitigating factors that reduced the discipline appropriate in the circumstances.
Finding in favour of the Employer, the Arbitrator upheld the 10-day suspension and found that “[t]he grievor’s conduct was a 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 Mr. Emeno 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 affirm the legal principle that in cases involving discipline for breach of a safety rule, it is not necessary for the targeted harm to materialize – in other words, the fact that the Grievor did not infect a co-worker with COVID-19, did not mean that his conduct was not extremely serious or immune from significant discipline. Indeed, the arbitrator went so far to say that the grievor was “lucky” the employer did not terminate his employment.
Takeaways for Employers
This case is the latest installment in a growing body of case law supporting significant discipline (including lengthy suspensions and termination) even for long service employees with clean disciplinary records. While all discipline should be approached cautiously, it continues to be clear that arbitrators take breach of COVID-19 protocols very seriously and are deferential to employers in their assessment of the appropriate discipline for employees who flout the rules.
PooranLaw will continue to monitor legal developments related to COVID-19 protocols and restrictions. In the meantime, if you require legal assistance in addressing health and safety related discipline in the context of COVID-19, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.