Cargill avoids damages for handling of early days of COVID-19 that left two employees dead, 951 with virus

The union representing Cargill employees at its High River plant was seeking about $20 million in damages

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Cargill won’t have to pay about $20 million in damages for how it handled the first months of the COVID-19 pandemic and subsequent outbreak which claimed the lives of two employees and one worker’s father.

The decision ends a four-year-long battle between the major meat producer and its employees’ union, which came in the wake of the three deaths and 951 COVID-19 cases connected to the meat-processing plant’s workforce — the largest single outbreak recorded during the pandemic.

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The three deaths linked to the outbreak were Hiep Bui, a 67-year-old shop steward; Benito Quesada, a 51-year-old shop steward; and Armando Sallegue, the 71-year-old father of a Cargill employee.

In his June 10 decision, Arbitrator James Casey wrote that the limited and rapidly changing information around the virus during the first months of the pandemic was a factor that weighed heavily on his conclusion Cargill largely met its obligations to ensure the health and safety of its High River employees.

When the pandemic broke, public health authorities determined food processing plants such as Cargill’s slaughterhouse were critical services and weren’t required to close. (At the time, Cargill’s High River plant provided about 30 per cent of Canada’s beef and 40 per cent of Alberta’s supply.)

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But the logistics of safely running a meat-packing plant were challenging: A centre like Cargill’s requires large numbers of employees working close together on an open production line, making it a high-risk transmission area. On the advice of public health bodies, Casey wrote, Cargill had instituted by late February 2020 a series of safety measures to protect workers against droplet transmission and physical contact — the two prevailing ways the scientific community believed COVID-19 was transmitted at the time.

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That approach did not take into account the then-unknown reality COVID-19 could spread through airborne or aerosol transmission, which was established much later in the pandemic, Casey wrote. In April 2020, he noted, Alberta Health Services (AHS) wrote in its Frequently Asked Questions page that COVID-19 was “not an airborne illness.”

“Employers, unions, governments and public health authorities had to make it up as they went along,” he wrote.

‘The fear in the community was intense’

The plant’s first case was confirmed on April 6, prompting the United Food and Commercial Workers (UFCW) Local No. 401 representing Cargill employees to call for a temporary two-week closure. Across North America, 30 UFCW employees had already died. At the same time, members of High River’s Filipino community wrote to the mayor imploring him to convince Cargill to close the plant.

“The fear in the community was intense,” Casey wrote. Soon after, swaths of employees stopped coming to work while AHS set up a Cargill Task Force to try to control the outbreak, though the public health body believed the risk of transmission at the plant was relatively low. AHS’ greater concern, Casey wrote, was transmission from employees living together and carpooling.

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Hiep Bui
The employee identification card of Cargill worker Thi Hiep Bui, who died on Sunday, April 19, 2020, from COVID-19 after working at the plant for 24 years.

On April 22, 2020, two days after the first employee was killed by the virus, Cargill temporarily closed the plant due to low attendance. Two days later, UFCW filed the grievance, claiming Cargill wasn’t meeting its obligation to provide a safe work environment.

The plant reopened in early May. On May 12, the union announced the death of a second employee. Little more than a month later on June 19, 2020, AHS determined the Cargill outbreak had resulted in 902 COVID-19 cases — the largest in Canada in the first year of the pandemic. More than 1,500 cases were eventually linked to the outbreak, with 951 employees testing positive — about half the plant’s entire workforce.

Arbitrator concludes Cargill followed advice in line with what was known at the time

In its grievance filing for that two-month period, UFCW demanded Cargill pay each employee $10,000 and pay the union $100,000. Because there were about 2,000 employees in the bargaining unit, the union was seeking about $20 million in damages.

The eventual 19-day arbitration saw the union call eight witnesses and Cargill bring six witnesses. “It is fair to say, that the parties have left ‘no stone unturned’ in the intense examination of Cargill’s actions,” Casey wrote.

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The central issues in the arbitration were the state of public health knowledge at the time, and whether Cargill’s safety measures were effective given the mode of virus transmission.

Casey eventually concluded that Cargill followed advice of public health authorities which was in line with what was known at the time about COVID-19. While the union argued this advice was mistaken and therefore didn’t protect employees, Casey wrote that Cargill and health authorities were relying on limited information at the time.

“It is not appropriate to second-guess Cargill’s decision based on current scientific knowledge about COVID-19 and current regulatory advice,” he wrote.

Benito Quesada
Benito Quesada was the second worker at Cargill to have died from COVID-19.

Casey noted that Cargill did fail to comply with its obligations to communicate with the Joint Health and Safety Committee to identify hazards and address those hazards, which is a direct contravention of the Occupational Health and Safety Act. While he said awarding damages for this breach wouldn’t be appropriate, he added the company failed to comply with its collective agreement in a “narrow but important way.”

He dismissed the remaining grievances.

Cargill and UFCW Local 401 did not immediately respond to Postmedia’s request for comment.

Alberta RCMP announced in January 2021 that it was investigating Quesada’s death. Mounties confirmed to Postmedia on Wednesday that the file was closed and Quesada’s death was deemed non-criminal.

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