Termination for Just Cause – No Mask No Job?
By: Michelle QuinnWhat is Just Cause?
Generally speaking, an employer has the unfettered right to dismiss an employee at any time with or without “just cause”. Dismissal for cause occurs when an employee is terminated for a reason related to an employee’s conduct. If an employer has “just cause” to dismiss an employee, the employer is not legally required to provide the employee with reasonable notice of termination. Examples of just cause include serious misconduct such as theft, habitual neglect of duty, incompetence or willful disobedience.
The Role Played by Masks
Social interactions and close contact in the workplace are associated with the risk of an outbreak of COVID-19 in a workplace constitutes a health hazard under the Public Health Act.
According to the BC Centre for Disease Control (the “BCCDC”), masks have a role to play in preventing the spread of COVID-19; masks act as a barrier and help stop the spread of droplets from a person’s mouth and nose when talking, laughing, yelling, singing, coughing or sneezing. Wearing a non-medical cloth mask is now required in many indoor public spaces by people 12 years and older. This includes, but not limited to, shopping malls, grocery stores and public transportation.
Mandatory Mask Wearing
In a provincial state of emergency, the Provincial Health Officer can make orders as needed. On November 24, 2020, the Minister of Public Safety and Solicitor General issued an order (the “Order”) requiring everyone to wear masks in all public indoor settings and workplaces. Workers are required to wear a non-medical cloth mask that covers the nose and mouth in all indoor public spaces. There are exemptions for:
- People with health conditions or with physical, cognitive or mental impairments who cannot wear one
- People who cannot remove a mask on their own
- Children under the age of 12
Additionally, employers have prepared a masking policy as part of their duty to protect their employees and provide them with a safe workplace. WorkSafeBC has issued guidelines recommending that employers consider whether updates to their COVID-19 Safety Plan are appropriate.
Refusal to Wear a Mask
An employee must comply with protocols in their employer’s COVID-19 Safety Plan which may include the use of masks for all their job duties. If an employee refuses to wear a mask contrary to an employer’s masking policy, the employer can discipline that employee. Whether or not that discipline amounts to dismissal for cause will depend on the conduct of the employee. Context is always key. An employee may have a disability that prevents them from wearing a mask which might include a respiratory disease.
If after reading this post you need assistance on drafting a COVID-19 Safety Plan appropriate to your workplace, or you require advice on termination, please contact Michelle Quinn or any one of our Employment and Human Rights Lawyers.
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Is it appropriate to make surreptitious recordings in the workplace, so long as one party to the conversation consents? According to a recent BC Supreme Court decision, the answer is “No”. In Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112, the Court found that Mr. Shalagin’s conduct in surreptitiously recording his colleagues constitutes just cause given the effect of the relationship of trust. The employee knew his actions were wrong, if not legally, at least ethically.
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Employee or independent contractor: which one are you? You might even be a dependent contractor. This intermediate category of “dependent contractor” has emerged over the last few years. Unlike an independent contractor, a dependent contractor must be provided with reasonable notice of termination of the contractor relationship. To determine whether a person is an employee or a contractor, the CRA and the Courts look at the substance of the relationship as a whole, which is exactly what the BC Supreme Court did in the case of Glimhagen v. GWR Resources Inc., 2017 BCSC 761
