An arbitrator has upheld the Vancouver School District's suspension of a gardener after he deliberately leaned into a colleague's vehicle, coughed on him and revealed he'd recently been off work with COVID-19 symptoms.
The gardener was "lucky that the employer did not terminate him" for the apparent failed attempt at a joke, labour arbitrator Paul Love wrote in an award issued earlier this month.
"In my view, no reasonable recipient would have viewed this as humorous," Love said.
According to the arbitrator's decision, Markus Linde had recently returned to work as an apprentice gardener after about four weeks of sick leave because of COVID-19 symptoms, though he'd never been tested.
He was on the job at Dr. R. E. McKechnie Elementary School on April 14, 2020, when he approached a delivery driver's vehicle, opened the passenger door, leaned into the vehicle and coughed, the document says. When the driver asked Linde to back up, Linde told him about his recent illness.
When they spoke again later the same day, the driver asked if Linde had been serious about having COVID-19. Linde replied that he shouldn't be contagious anymore but that if the driver got sick it would be like a "science experiment" and referenced "biowarfare," the driver told the school district.
The driver's supervisor testified that he was visibly upset after this encounter, and asked to go home so he could shower and change his clothes.
'People have died'
The arbitrator's decision points out that this happened early in the pandemic, when there was "considerable uncertainty and a heightened degree of concern" about the disease. B.C. children had been sent home from school to prevent transmission as the province struggled to get the first wave of infections under control.
"The grievor [Linde] 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," Love wrote.
Linde's union, CUPE Local 407, filed a grievance arguing that a 10-day suspension was excessive, but Love rejected that, writing that the gardener's actions were a "foolish, insensitive and deliberate violation of safety rules."
The decision notes that Linde apologized to the driver by text message after he learned he was under investigation, acknowledging the joke was in "bad taste" and assuring him, "I can almost guarantee you will be fine."
Love said he was satisfied that Linde now understood that what he had done was wrong.