Hope and Chartwell ltc homes - January 2022
The Arbitrator states that automatic termination violates the Collective Agreement and that there is no health and safety reason to terminate as the employer acknowledges it does not know what the future holds. This decision should not be taken by any employees who choose not to get fully vaccinated as indicating that the Employer would never be able to terminate their employment for non-compliance with the policy in question, or indeed any reasonable policy.
It is only the automatic application of this policy as it respects discharge that has been found to be unreasonable. Employees must understand that even if their Union and the Employer are unable to reach agreement pursuant to the Collective Agreement, the Employer continues to have its Management Right to terminate an employee for just cause. Hence, employees who remain non-compliant with the policy should not think that they are protected forever from the possibility of being dismissed, as the Employer may at some point do so if it feels it can establish that it has just cause for termination of any particular employee. No employer has to leave a non-compliant employee on a leave of absence indefinitely. At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee.
Teamsters and MLSE - January 2022
Arbitrator Jesin upheld both the requirement to disclose the vaccine status and the imposition of mandatory Covid-19 vaccination (with no option to allow for testing as an alternative) for workers employed by “MLSE” at Scotia Bank Arena.
The Arbitrator found both to be reasonable exercise of management rights under the collective agreement and determined that the policy choices did no breach the collective agreement or relevant legislation. Accordingly, the grievance of the employee put on indefinite unpaid suspension was dismissed.
UFCW and Paragon Protection - November 2021
Protection Ltd. v. UFCW Local 333
In the Paragon Protection Ltd. v. UFCW Local 333 (November 2021) award, Arbitrator Fred von Veh upheld a mandatory vaccination policy as a reasonable exercise of managerial authority. Though the award is light on analysis, there are some useful observations about the context of a global pandemic and the importance of protecting the health and safety of employees, customers, customers’ employees, and the public.
Arbitrator van Veh relied on KVP and a balancing of competing interests. In the view of the arbitrator, the company’s policy struck an appropriate balance between respecting the rights of employees who declined to be vaccinated and the requirement to ensure a safe workplace for staff, clients, and members of the public. The Arbitrator relied on provisions of the Occupational Health and Safety Act that require employers to take “every precaution reasonable in the circumstances for protections of its workers”.
PWU and ESA - November 2021
Electrical Safety Authority (ESA) v. PWU
In this decision, Electrical Safety Authority (ESA) v. Power Workers’ Union (November 2021), Arbitrator John Stout ordered changes to the Employer’s Vaccination Policy. Specifically, Stout required the employer to adopt a vaccination or testing regime and required the employer not to impose discipline or discharge at this time. Arbitrator Stout offered his endorsement of the decision in Paragon Protection and noted there is no inconsistency between his award and the earlier decision despite arriving at a somewhat different result because of the differing factual context. As noted by the arbitrator, “ …this award should not be taken as a vindication for those who choose, without legal exemption, not to get vaccinated. …These individuals may also be placing their ability to earn a living in jeopardy”.