When Jeremy Arnot ordered a bad plate of chicken wings to his Ladysmith hotel room while on a work trip, he had no idea it could cost him his job.
The wings allegedly induced a case of diarrhea for Arnot, whose employer then insisted he get tested for COVID-19. When Arnot failed to follow the company’s COVID-19 policies, he was fired, told to pay for his hotel room and find his own way home to Trail. But now, labour arbitrator Paul Love has reinstated Arnot’s employment as an industrial cleaner, saying that companies need to establish clear COVID-19 safety protocols and ensure their employees are trained on what to do if they may be infected with COVID-19.
“An employee’s report of diarrhea during this pandemic is not a sufficient justification for demanding a COVID test. The employer must establish, based on objective considerations, that a demand for a test is warranted,” Love wrote.
It all started when Arnot and a crew from Terrapure Environmental were sent for a cleaning job at a mill in Crofton in late November 2020. On that trip, Arnot ordered the fateful chicken wings that kept him up sick all night and into work the next day.
Arnot was sent back to his Ladysmith hotel to rest after he complained to a supervisor. What happened next was anything but restful.
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In an effort to recover from his intestinal troubles, Arnot made lunch plans with a friend in Nanaimo.
Meanwhile, company supervisors texted Arnot, instructing him to remain in isolation in his hotel room. They also instructed him to phone 811 and get a COVID-19 test. Arnot admitted to calling 811 but hung up because the call was taking too long. He then did an online COVID-19 screening test, which told him he did not “appear to have symptoms of COVID-19.”
Ultimately, Arnot was fired by his company for insubordination. They claimed he defied their orders by not calling 811, not self-isolating and not providing a COVID-19 test.
Love found that there was no insubordination in Arnot’s case, but rather a lack of clear direction from management on COVID-19 policy. Love wrote that knowledge of the company’s COVID-19 protocols was “not particularly well-known” within the organization as Arnot was sent back to the hotel, but was not instructed to self-isolate despite company policy stipulating all sick employees must self-isolate and provide a COVID-19 test.
“The employer then appears to scramble around to determine whether they should request a test and ultimately they conclude a test was necessary. The grievor should not be held accountable as insubordinate when the employer did not have its act together, violated its own protocol by not asking for a test when they sent the grievor back to the hotel and did not ask for a test until a time when the grievor was already out of his hotel room and on his way to lunch,” Love wrote.
“It is incumbent on the employer not only to give clear instructions, but also to give consistent instructions and behave consistently itself in accordance with those instructions.”
Arnot was awarded his job back with a five-day suspension for dishonesty in the investigation and was made whole in terms of salary, benefits and seniority with the exception of the time related to the suspension.
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