In a recently released case between the Hawkesbury and District General Hospital and the Ontario Public Service Employees Union, Arbitrator Michelle Flaherty upheld the termination of an employee for non-compliance with a mandatory COVID-19 vaccination policy.
Emond Harnden’s André Champagne and Marie-Michèle Pellerin-Auprix successfully argued that the non-disciplinary dismissal of the grievor by the Hospital was justified in the circumstances.
The Decision
In this case, the Union did not question the reasonableness of the Hospital’s policy, but alleged that the Grievor’s dismissal was an unreasonable and disproportionate application of it. The Union argued that that disciplinary action could not be imposed on the grounds that the Grievor had not consented to medical treatment and/or disclosure of her vaccination status. The Union also argued that dismissal is an inordinate measure in the circumstances, in light of Grievor’s eight years of service and her clean disciplinary record.
The Hospital argued that it was appropriate to exercise its management right and terminate the Grievor’s employment for cause, following six months of reminders of her non-compliance, including a period of over four months of unpaid administrative leave. The Hospital also argued in the alternative that it had just cause to impose the non-disciplinary dismissal since there was no reasonable cause to believe that the Grievor would comply with the vaccination policy in the near future.
Arbitrator Flaherty reviewed other jurisprudence with respect to vaccination policies, including the Ontario Court of Appeal’s decision in Croke v. VuPoint System Ltd with respect to the doctrine of frustration of contract to justify the non-disciplinary dismissal of a non-unionized employee who had refused to comply with a mandatory vaccination policy. She commented that, but for a few exceptions, the notion of frustration of contract does not typically apply to unionized employees. Indeed, in the context of labour relations, there is no individual employment contract that could be rendered unenforceable. However, the arbitrator further commented that dismissal may be justified in certain non-disciplinary circumstances, where a unionized employee is unable to perform the duties of their position in the reasonably foreseeable future. This may occur, for example, when an employee loses a security clearance, permit or license that is necessary to perform the duties of his or her position.
To conclude, arbitrator Flaherty determined that it was unnecessary to determine in this case whether disciplinary action was appropriate in the Grievor’s circumstances; at a minimum, she accepted the Hospital’s alternative argument and found that a non-disciplinary dismissal was justified in the circumstances.
In Our View
The decision provides helpful insight into an employer’s rights and obligations when considering whether to apply discipline and/or administrative sanctions to a unionized employee under a mandatory vaccination policy. In these particular circumstances, the hospital’s decision to dismiss the grievor for administrative reasons was deemed appropriate by the arbitrator.
For more information, please contact André Champagne at achampagne@ehlaw.ca or Marie-Michèle Pellerin-Auprix at mmpellerin-auprix@ehlaw.ca.
