Background and Decision
A recent decision by Arbitrator Misra held in favor of the union Healthcare, Office and Professional Employees Union, Local 2220.
The employer Chartwell Housing Reit introduced a mandatory vaccination policy which included their right to terminate employees who refused to comply. The Arbitrator held that the policy was unreasonable and took the following provisions of the collective agreement between the employer and employee into consideration.
The first relevant provision was that an employer must discuss changes with the union prior to making any meaningful change to workplace rules.
The second relevant provision was that working conditions, benefits, practices, and rights must continue up to the point that they remain consistent with the collective agreement terms and of more benefit to it. This is to be the case unless both parties agree to modify them.
In September of 2021, a policy was introduced that required all employees to be vaccinated against COVID-19. The exception to this is a valid medical exemption.
The Minister of Long-Term Care used his power to enforce the policy. Subsequently, after failing to provide proof of vaccination, 16 employees were put on unpaid leave with 14 of whom eventually being terminated for cause.
The union argued that employees should not be disciplined or terminated. This was because the termination was not required according to the Minister’s Directive. Further, this was contrary to the collective agreement. They argued that there was a duty to give notice by the employer to the union of the change in policy. This was because they needed to come to an agreement with the union about this as it was a significant change to the employee’s working conditions, rights, and benefits.
By contrast, the employer argued that employees refusing to comply with the vaccination policy amounted to wilful misconduct, which justifies termination for cause. According to the employer, it was willful misconduct as they provided notice that the employees needed to be vaccinated, or else they would be placed on unpaid leave. To encourage vaccination, the employer had arranged counselling sessions and education leading up to the deadline. The employer also claims to have warned the employees that they could be terminated if they did not disclose their status of vaccination or if they were unvaccinated.
The Arbitrator held that the collective agreement was breached by the employer. This was because they did not provide a copy of the policy introduced in September to the union, which allowed the employer to place employees on unpaid leave or terminate them. Further, the policy was not discussed with the union prior to implementation.
The Arbitrator held that the policy which allowed the employer to terminate their employees for failing to comply with the vaccination policy was unreasonable and unenforceable.
This was because the automatic power of the policy did not allow the union to rely on mitigating factors, such as an employee’s clean disciplinary record and the length of service of an employee.
For unionized employees, mandatory vaccination policies are a nuanced and elaborate legal area to follow. It is best advised that you consider legal advice from employment and labor lawyers to know what your rights are.
For employers, you must be careful when it comes to termination in so far as it relates to vaccination policies, and workplace policies generally. Legal counsel should be consulted prior to introducing changes in any of your workplace policies.