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Arbitration Decision on Just Cause Dismissal for Refusal to Vaccinate

 

Hi everyone my name is Nadia Zaman and I’m an associate at Rudner Law.

In this vlog I will be discussing the latest arbitration decision on just cause for dismissal for refusal to vaccinate.

The case I will be discussing today is Fraser Health Authority and British Columbia General Employees Union. The citation is 2022 canlii 25560.

What happened in this case? The grievor had been employed by Fraser Health Authority for seven years as a substance abuse counselor and had a clean disciplinary record. The Provincial Health Officer of B.C., P.H.O., issued an order on October 14 2021, referred to in the decision as a hospital and community order, requiring all health authority employees to obtain vaccination against COVID-18 in order to be eligible to work. The order required that as of October 26 2021 all health authority employees must be vaccinated or have an exemption to work. The only exemption was on narrow medical grounds. There was no exemption for religious reasons. Exemptions could only be determined by the P.H.O.’s office, not by an individual employer. Staff ineligible to work as of October 26 2021 still had the opportunity to return to work seven days after obtaining their first dose, provided that they did so by November 14 2021. As of November 15 2021 there were no further exemptions. The grievor did not obtain the COVID-19 vaccine despite multiple notifications from the employer. In fact, she advised her employer that she did not ever intend to obtain the vaccine. As a result, in November 2021 the employer terminated the grievor’s employment.

The union argued that the employer did not have just and reasonable cause for termination and that there were reasonable alternatives, such as an unpaid leave of absence. The employer on the other hand argued that the grievor’s employment was terminated for just cause due to her ineligibility to work under the hospital and community order. The arbitrator found in favour of the employer and dismissed the grievance.

Now it’s important to note that this case is about whether the employer had just and reasonable cause to terminate the grievor’s employment, in the context of a P.H.O. order imposing mandatory vaccination requirements that apply to health sector employees across the province. Notably while the employer had also implemented a policy regarding the requirement to vaccinate and the consequences of failing to do. So the policy was not in place until November 7 2021 and the employer did not rely on the policy, the employer relied only on the order itself. The arbitrator found that the union did not dispute that: 1)

  1. the hospital and community order applied to the grievor;
  2. the grievor was ineligible to work under that order;
  3. the grievor had no intention of taking a COVID vaccine.

The arbitrator found that the employer repeatedly advised the grievor of the order’s requirement for vaccination to remain eligible for work. The employer encouraged her to obtain vaccination, provided multiple opportunities to do so, and gave express notice of the employment consequences of failing to do so. The arbitrator found that for her own personal reasons the grievor chose not to get vaccinated. The arbitrator stated:

clearly the griever has the right to make her personal choices and I accept she strongly believes in her views, however the result of those choices was that she rendered herself, by virtue of the terms of the order, ineligible to work for F.H.A. in any capacity. Further she advised F.H.A. that she had no intention of ever becoming vaccinated. Accordingly there was no reasonable prospect of her becoming eligible to work under the order in the foreseeable future. An employee who by her choice renders herself statutorily ineligible to work indefinitely gives F.H.A. cause for some action, whether it be considered culpable or non-culpable.”

And F.H.A. of course refers to Fraser Health Authority here. So when it came down to the decision, the arbitrator found the grievor had advised she would not get vaccinated and had no intention of ever doing so. The government order had no expiry date, no indication of the order being lifted in the near future and there were serious operational impacts on the health care system associated with placing unvaccinated employees on unpaid leaves of absence of unknown duration. Also there was no exemption available to the grievor under the order and in effect there was no path forward for the grievor for continued employment.

The arbitrator found that the grievor failed to comply with the requirements of the hospital in a community order and rendered herself ineligible to work. The arbitrator found that in all of the circumstances of the case, the employer was not required to place the grievor on a leave of absence of indefinite duration where there was no foreseeable prospect of her being eligible to work at the time. The arbitrator found that the employer had presented compelling operational reasons for its approach to the grievor’s employment and that no lesser alternative was reasonably available.

Now this is key: employers should be very careful in deciding to dismiss employees especially for cause. Every case will be decided on its own particular facts and circumstances. The context will be key. In this case for example, a critical factor was the hospital and community order which rendered the unvaccinated employee ineligible to work. For the employer, especially given her express intention to never get vaccinated, the arbitrator said:

I have reviewed all of the authorities referred to by the parties a clear feature of the jurisprudence is that each case will turn on its own facts and must be decided within a specific context.”

So before dismissing any employees, employers should seek legal advice from an employment lawyer in order to minimize potential liability and save on dismissal costs. On the other hand if you are an employee, do not assume anything. If your employer dismisses you with or without cause, you may have greater entitlements than what they’re offering you.

As we often say, if you think you need an employment lawyer you probably do.

If you have any questions or would like to understand more about how we can help you, please feel free to contact us.

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