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To date we don’t have a court decision on the merits of an employer’s vaccination policy nor a court or arbitration decision addressing an employee’s termination for non-compliance under such a policy. What we have are four court injunction decisions stemming from unionized employees attempting to prevent application of the penalties for non-compliance with such policies AND a third arbitration decision concerning the reasonableness of an employer’s vaccination policy.
The Injunction Cases:
The first of three before the Ontario Superior Court of Justice is Blake v. University Health Network, 2021 ONSC 7139. Therein the Court granted – and then took away – an interim injunction. The interim injunction was shortly in place given the Court’s realization that unionized employees don’t have standing to pursue an injunction pending the results of an arbitration before it. There is no irreparable harm to unionized or non-unionized employees that cannot be addressed with monetary damages.
The same result followed for unionized employees to be placed on an unpaid leave and then dismissed if they remained unvaccinated under their employer’s mandatory vaccination policy in both Amalgamated Transit Union, Local 113 et al v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658. In coming to these conclusions, the Court refused to consider the safety of vaccines as relevant and instead focused on the fact that there was no irreparable harm to the employees as they could arbitrate and receive monetary damages. Additionally, the Court determined in assessing the relative harm (the balance of convenience arm of the test for granting of injunctions) that it was greater for the employer.
The fourth, before the Federal Court, was Wojdan v. Canada, 2021 FC 1244. This case involved a group of employees from the Core Public Administration of the federal government. Therein the Court dismissed the interim injunction motion because the employees delayed over a month to commence the action/seek such equitable relief (i.e., demonstrated no urgent need for it).
The Latest Arbitrator Decision? Arbitrator Murray’s November 12, 2021 decision in Power Workers’ Union v. Ontario Power Generation (OPG).
If you recall, based on the specific facts of the last two cases, the first upheld the employer’s mandatory vaccination policy and the second did not. Arbitrator Murray breaks this tie upholding OPG’s mandatory vaccination policy as reasonable. This is likely because it had an alternative to mandatory vaccinations.
Under OPG’s policy a rapid antigen testing program and a two-step penalty process for refusing to be vaccinated or participating in the testing program was established. First the employee would be placed on an unpaid leave and thereafter dismissed if the employee continued to refuse for six weeks.
In his decision the Arbitrator expressly held that:
(a) employees who refuse to get vaccinated or submit to regular testing can be sent home on an unpaid leave pending completion of the discipline process; and
(b) unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers.
The Arbitrator also signaled that those employees who are dismissed in such circumstances are very likely to find their dismissals upheld at arbitration.
Takeaways? While the law and the workplace contexts are still evolving with the continuation of the pandemic, these early decisions provide the following guidance:
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- Unions cannot seek injunctive relief in the Courts and are limited to their collective agreement’s grievance arbitration process. The Courts have refused to exercise their inherent jurisdiction. To date the Courts have ruled that such policies do not result in irreparable harm to employees that cannot be compensated for with damages.
- The enforceability of such policies is highly fact and context driven. Employers must consider their policies in the context of their workplace and the specific dangers it presents (i.e., its proportionality to the circumstances and why a less onerous policy will not suffice) along with any applicable collective agreement, legislation, and governmental guidance.
- Arbitrators have left the door open to revisit their assessment of an employer’s policy as the pandemic continues and workplace contexts change.
- Dismissals for failing to comply with a reasonable and proportionate employer policy specific to the parties’ workplace and assessed risks “very likely” will be upheld.
Sheryl L. Johnson brings a proactive, creative, and vibrant attitude to her labour, employment and human resource law practice. Sheryl has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment and labour law, including for example construction labour law, employment related civil wrongful dismissal, human rights, and labour board litigation; privacy, governance, statutory and regulatory compliance, and executive compensation matters; as well as conducting workplace training and workplace investigations. Sheryl is also an avid educator and writer, including authoring a bi-weekly business column in The Niagara Independent and the text: Sexual Harassment in Canada: A Guide for Understanding and Prevention. Sheryl enjoys in her free time giving back to the Niagara community. She is a member of the WIN Council, Chair of the Board of Directors for the Niagara Jazz Festival, Vice-President of the Board of Directors for the YWCA Niagara Region, Secretary of Big Brothers Big Sisters of Niagara Falls Board of Directors, a board member of the Niagara Home Builders Association, and a board member of the Women in Construction group of the Niagara Construction Association.
You can connect with her on LinkedIn or contact her at sljohnson@sullivanmahoney.com.
