Employee misconduct: How COVID-19 is changing the rules

The global pandemic has acted as a catalyst for organizational change

Employee misconduct: How COVID-19 is changing the rules

The global pandemic has acted as a catalyst for organizational change, revolutionizing the way we think about workplace practices — particularly regarding employment law. As a result, the definition of employee misconduct, and the types of conduct that can warrant disciplinary action or dismissal, has expanded and evolved. Speaking to Stuart Rudner, founder of Rudner Law and speaker at the recent UKG webinar, Employee Misconduct in Canada, he revealed how clients are coming to him with a whole host of new questions.

“There are so many new COVID-19-related issues we’re seeing come to the forefront for human resources,” he told HRD. “More than a year into this pandemic, a few pivotal cases have made their way to the courts — and we’ve seen verdicts rendered that set precedents that other employers should consider. A prime example involved a screening officer at Pearson Airport. She’d gone for a COVID-19 test on April 6, 2020 and was awaiting the results. Here in Ontario, we have clear guidelines around test results: you’re expected to self-isolate and stay away from your workplace until you receive a negative test result. However, the officer in question returned to her workplace after her test on April 6.”

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As Rudner told HRD, when confronted on this issue, the employee was initially dishonest — claiming she hadn’t gone into work. However, when faced with the evidence, the worker had to admit fault.

“Notably, the employee was completely unrepentant,” continued Rudner. “She didn’t seem to acknowledge that she’d put hundreds of people at risk. So, this case went through the arbitration process, during which the arbitrator looked at both the misconduct issue and the relevant surrounding factors.”

Relevant factors can include issues such as the employee’s length of tenure, disciplinary history, whether an employee has been deceitful, and even, as in this case, the nature of their response when confronted with the concerns.

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“Are they apologetic? Or are they adamant that they did nothing wrong? In the latter circumstance, you’re going to have a much stronger argument to say that the employment relationship cannot continue,” said Rudner. “That’s exactly what the arbitrator found in this case. Given the conduct, given the dishonesty, and given the lack of remorse, there was just cause for dismissal.”

In this instance, Pearson Airport had clear policies around COVID-19 testing and employee conduct. However, it’s not always so cut and dry for other Canadian employers — especially if they don’t have up-to-date policies.

So, does that mean you cannot discipline a badly behaving employee if your policies haven’t been updated recently?

“You don’t need to have a policy in order to impose discipline,” clarified Rudner. “But it definitely helps. When it comes to COVID-19 safety, for example, there are a ton of guidelines out there for various sectors, industries, and essential businesses. Many professional associations have even decided to design their own. So, it is critical to know what the rules are in your workplace.”

For HR leaders, keeping up to date with all of these pandemic-related workplace changes can be tricky. Evolving rules of misconduct mean that employers need to review their workplace policies frequently.

A further consideration is an off-duty conduct — what employees do when they’re not at work.

“Health and safety issues both inside and outside the workplace continue to take precedence,” Rudner told HRD. “Just recently, there was a case involving a school custodian who was seen at an anti-vaccine rally, not wearing a mask and not social distancing. Not surprisingly, many parents were upset, saying that this custodian, who’s responsible for keeping the school clean and keeping the kids safe, is not complying with the rules. In this case, he was instructed to self-isolate. However, it’s important to note that if the employee had refused to self-isolate or had lied about being at the rally, he could have been disciplined or potentially dismissed.”

To hear more on this topic, downloads UKG’s webinar on Employee Misconduct in Canada.

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