The arbitrator decided the employee’s choice was a deliberate, intentional, defiant and offensive act of misconduct, which justified the staff member’s termination, writes Ed Canning.

Harley had worked at a large warehouse in the shipping department for 20 years. He was in a union, and by the summer of 2020, he was acting chief steward for the union. His responsibilities as chief steward included attending meetings with management when policy changes were taking place. When the pandemic first began, the employer instituted mandatory temperature checks upon entry to the building, enhanced sanitization stations, social distancing and staggered breaks.

In early July, however, a number of employees came down with COVID and had to self-isolate. Up until then, masks had been voluntary, but management decided to make them mandatory. When Harley learned of this as chief steward in a management meeting, he objected. He said wearing masks was a sensitive issue and a number of union members would not feel comfortable. He felt that a mandatory mask policy was unnecessary. Harley said he thought masks were an “Asian thing” and further stated “I am not a Muslim.”

Notwithstanding Harley’s response that morning, the policy was put in place and he was told he had to wear a mask or be suspended pending investigation.

Before he put it on, Harley found a big marker and wrote on his mask “I am not a Muslim.”

A co-worker was shocked when he saw it and cautioned Harley to be careful. When...

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