Canada: Arbitrator Upholds Dismissal for Unauthorized Early Return to Work after Sick Leave during COVID-19

Author: Emily Elder

Bottom Line

In a recent arbitral decision, Birla Carbon Canada Ltd. v Teamsters Local Union No. 879, the Arbitrator upheld the dismissal of an employee who returned to the workplace prematurely from sick leave without proper authorization. The employer in this case was successfully represented by Filion Wakely Thorup Angeletti LLP lawyers, Mark Zega and Alyssa Johnson.

Background Facts

The events in this case unfolded between March 12, 2020 and March 20, 2020—a period that many will remember as exceptionally challenging both at home and in the workplace. On March 17, 2020, the Province of Ontario declared a state of emergency due to the escalating COVID-19 pandemic. Arbitrator Johnston’s decision was rendered with these extraordinary circumstances in mind.

The employee in this case was a material handler, who had worked for Birla Carbon Canada Ltd. (“Birla”) for approximately five years. The employee was off work for a three-day suspension from March 7-8 and 11, 2020 for failing to report a workplace injury. On March 12, 2020, the employee called in sick after being diagnosed with strep throat. He provided the employer with a medical note that authorized him to be off work until March 18, 2020. However, the employee returned to work the evening shift on March 16, 2020 before the end of his medical leave, without the employer’s knowledge or approval. Upon becoming aware of this, Birla terminated his employment for recklessly attending work while sick during a public health crisis.

The union contended that the employee did not violate any company rule or policy, he had confirmed with a doctor that his strep throat would not be contagious, and there was no evidence suggesting the employee had or might have had COVID-19.

The Decision

Arbitrator Johnson upheld the employee’s dismissal. The arbitrator acknowledged that the employee did not have COVID-19 at the time, did not lie about his symptoms, and did not intend to harm anyone. He noted that the workplace did not have COVID-19 protocols in place, as the events happened so early in the pandemic, and that the employee actually wore an N-95 mask during his shift (as was usual practice). The arbitrator also noted that the employer wasn’t told of the strep throat diagnosis until after the discharge.

In upholding the dismissal, the arbitrator placed significant weight on the deliberateness of the employee’s actions, the lack of trust between the parties, his prior disciplinary record, his lack of remorse, and his failure to accept full responsibility for his actions. The arbitrator recognized the employer’s right and duty to protect health and safety of the workplace, which extends to reporting potentially contagious illnesses. The arbitrator found that the employer was rightfully concerned about the employee’s unauthorized return to work while sick during a global pandemic. The employee’s deliberate actions denied the employer the opportunity to assess whether he posed a threat in the workplace.

Takeaways

This case highlights that arbitrators will take employee misconduct seriously, especially during extraordinary circumstances like a global pandemic. Even if specific policies are not violated, the context—such as a state of emergency—can influence the case outcome. Arbitrator Johnston’s decision highlights the employer’s duty to take measures to ensure a safe workplace. This case also reminds us that, while employers do not have the right to know an employee’s diagnosis, an employee who wants to rely on that very diagnosis in litigation keeps it confidential at their peril.