COVID vaccination policy terminations bring new questions

By Tony Poland, LegalMatters Staff • The recent dismissal of almost 500 City of Toronto workers for failing to comply with a COVID-19 vaccination policy is certain to lead to a surge in wrongful dismissal court cases and grievances for wrongful dismissal, says Toronto-area employment lawyer Geoffrey Lowe.

But until there is more direction from the courts on whether the dismissals are justified, uncertainty will remain in the employment world, says Lowe, an associate at Rudner Law.

“I expect we are going to see a number of court cases coming forward about this,” he tells LegalMattersCanada.ca. “And I believe there is going to be a very much context-specific discussion in terms of whether the workforce, and the workplace itself, requires a vaccination policy or if there’s alternatives such as mandatory testing, remote work or more social distancing.

“We will likely see some test cases go to court first and the outcome of these may colour what goes on with similar cases moving forward,” Lowe predicts. “So far, in terms of unvaccinated employees, there has not been a decision in terms of the legitimacy of a dismissal for a refusal to comply with a vaccine mandate, either at an arbitration or in court.”

Workers fired for violating city vaccination policy

At the beginning of the year, the City of Toronto terminated the employment of 461 employees who had not received any doses of the COVID vaccine or had not reported their vaccination status. The workers had until Jan. 2, 2022 to comply with the policy that went into effect last September. According to a news report more than 98 per cent of the city’s active workforce have complied with the policy.

“It was certainly a definitive statement from the City of Toronto in terms of its willingness to follow through on its requirement to have a vaccine policy in place,” says Lowe, “It is not a huge percentage of the city’s workforce but in terms of sheer numbers it is significant. It is certainly the most employees I have seen dismissed at once on the basis of compliance with a vaccine policy.”

He says the light at the end of the COVID tunnel seems far off in terms of the impact the pandemic is having on the employment world.

“It is almost like measuring coastline. The more you look at it, the bigger it gets in terms of the legal challenges it creates,” Lowe says. “There is very much a degree of uncertainty. I know some are on record as saying that a dismissal for not complying with the vaccine mandate is just simply a wrongful dismissal and any employee dismissed in this manner is entitled to reasonable notice. I am not sure anything is definitive at this point because we legitimately do not know what is going to happen next.

‘Just cause is a high standard and a complex area of employment law’

“There is certainly an argument from a 30,000-foot perspective that a policy put in place by an employer is simply something an employee must comply with and failing to do so is insubordination, which in some circumstances is grounds for a dismissal for just cause, meaning the employer does not have to pay the employee anything apart from statutory entitlements, and potentially not even those. Just cause is a high standard and a complex area of employment law on its own, and not something that can or should be asserted lightly, as the principal of Rudner Law, Stuart Rudner, addressed in detail in his book,” he adds. “But until the first few decisions start to come out and we get some direction, the uncertainty will remain. In order to constitute insubordination or breach of policy warranting discipline or dismissal, the direction or policy requiring that workers be vaccinated must be reasonable. That may not be true in all cases, such as where an employee is working entirely remotely.” 

Lowe says he expects the fallout from the City of Toronto dismissals will soon start to unfold. What happens next will depend on whether the employees are represented by a union. If they are not members of a union, they may bring a claim for wrongful dismissal at court.

Those in a union can file a grievance under their collective agreement.

Procedures must be followed in dismissal of unionized worker

“You cannot simply dismiss a unionized worker the same way you can with the non-union worker,” Lowe explains. “In the normal course of events, there are procedures to be followed and there is the potential that an arbitrator, in addressing a grievance, could order that the dismissed employee be placed back in their pre-dismissal position.”

However, in the case of a worker failing to acknowledge or comply with a vaccination policy it seems unlikely they could be reinstated “without substantially and materially, changing that policy,” he says.

Lowe says workers who fail to win at the grievance stage could bring a “duty of fair representation” complaint against their union claiming their representatives failed to stand up for them.

“There have already been a few of those in terms of the vaccine mandate — but as far as I am aware, not in relation to a dismissal for failing to follow a vaccine mandate,” he says. “However, the unions were found to have not breached the duty of fair representation by the Ontario Labour Relations Board, which noted in one case that it wasn’t the union’s job to debate with its membership endlessly and it had done what it needed to do in terms of communicating its position regarding the employer’s vaccine mandate.”

Employer entitled to take steps to operate business

An employer in a unionized workplace is entitled to take steps to allow them to operate their business, says Lowe, so a vaccination policy can be seen as justified. However, there can be circumstances where a grievance could be successful.

“I believe that a major factor is whether the work can be done remotely and whether a vaccination policy is mandatory in that respect,” he says. “No matter what, there must be a process for reasonable accommodation. You obviously cannot terminate the employment of someone whose inability or refusal to be vaccinated is because of a protected ground such as a medical condition or a religious belief — in that case the employer must take steps towards finding a reasonable accommodation, up to the point where it causes the employer to incur undue hardship.”

Lowe adds however, that the protected grounds under the Ontario Human Rights Code are limited.

“The Ontario Human Rights Commission has come out with a statement saying that your personal opinion on the vaccine does not constitute creed. You cannot rely on that as an exemption,” he says. “It has to be a legitimate religious-based or medical exemption.”

In the end, Lowe says any vaccination policy must be reasonable.

“The takeaway from what we have seen so far is that a properly implemented and considered policy is crucial,” he says. “There are some things that are non-negotiable, such as privacy provisions. If you are taking medical information from employees, you must ensure it is kept safe and secure and there is very limited access on a need-to-know basis.”

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