Stuart Rudner here with another Rudner Law video employment law update.
So today we’re still talking about vaccination, even though I had a really nice weekend, where I saw a concert and two movies and it seemed as though we were getting something somewhere near back to normal. We’re still talking about the issue of whether you can lose your job for refusing to be vaccinated and how things like medical or religious exemptions might come into the discussion. This is going to be the question of the day, the month, the year, the coming years. We’re going to see courts and arbitrators grappling with this for many years to come which gives you a sense of how complicated the issue is.
Those of you who have been following me for a while know that I’ve written a book on just cause for dismissal, it’s called You’re Fired, it’s about this thick because even prior to COVID-19 the issue of when somebody could be fired for cause was a very complicated one. I think it’s important that we define our terms here because when we talk about firing someone, we usually mean dismissing someone because of some sort of misconduct or something that they did, as opposed to being let go, which usually refers to a non-blame-worthy dismissal, such as a downsizing. And those are two very different contexts. Legally we refer to them as dismissal with cause and dismissal without cause, and the difference can be tremendous. If you’re dismissed without cause, which is the vast majority of terminations, you are entitled to notice, termination pay, severance pay, compensation for losing your job. If you’re dismissed with cause, you don’t get any of that. So the threshold is not surprisingly quite high for courts to find that just cause existed, because it can be such a harsh result for the employee. So I’m going to leave the issue about whether refusing to be vaccinated is just cause for dismissal to another day. If you check out our blog and our website, we’ve written on this repeatedly, we have also got other video blogs where we talk about it, so there’s lots of information on the subject.
What I want to talk about today is a case that made the headlines recently in Ontario and I think beyond that, where a nurse in the Sudbury area was ordered to be reinstated. She had lost her job for refusing to be vaccinated and what the arbitrator found is that she should have been granted an exemption based upon her religious beliefs. That is, as far as we are aware, the first known decision of a court or an arbitrator upholding an exemption on a religious basis for the refusal to be vaccinated. In that case what the arbitrator found, I’m just looking at the decision here, was at the basis of this woman’s objection to being vaccinated was that they used fetal cell lines in the research and that therefore to use one of the vaccines would be to “condone, cooperate with, or participate in the abortion”.
Now it’s interesting that the arbitrator did take note of some inherent contradictions in this woman’s position, for example it was clear that her initial refusal to be vaccinated was not related to the research and the use of fetal cells in the research, it was also interesting that, you know, that she probably had other vaccines in her past that were also generated by similar research, and also he noted that the Pope had even expressed his support for vaccination, but despite all that, the arbitrator went on to note, and I’m looking over on the side because I’m reading from the decision, that “claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs.
What is key is the sincerity of the belief”, the arbitrator wrote. “Since it’s not the court’s job to decide what is and isn’t a reasonable religious belief”, as the arbitrator said, “in my view the state is in no position to be, nor should it become, the arbiter of religious dogma”. In other words, and this is not anything new, courts and arbitrators are not going to assess the objective reasonableness of a religious view. What they are looking at is whether they are legitimately and genuinely held, so what the arbitrator goes on to say is that despite some of the contradictions in her case, “since the grievor holds a sincere belief with sufficient nexus to her creed (i.e religion) that to get vaccinated would interfere with the exercise of her faith and her relationship with the divine, the grievor is entitled to an exemption”. In other words there’s got to be a sincere belief, it’s got to be sufficiently connected to her religion, and that belief has got to preclude, in this case the idea of being vaccinated, and if all that is true, she is entitled to a religious exemption, which is exactly what the arbitrator found in this case. So in this case, she was ordered to be reinstated.
One thing to keep in mind is that as I said earlier you can be let go at any time for almost any reason, that’s true for most Canadians, other than unionized employees. The exception to that, or the reasons that you can’t let somebody go, relate to grounds protected by human rights legislation, such as religion, disability, gender, and sexual orientation. In this case the fact that the claimants or the nurse’s refusal to be vaccinated was based upon a religion, entitled her to accommodation under the human rights code, and in this context meant that she could not be dismissed as a result. I think a lot of us were surprised by this decision, it was the first one, as I mentioned, and I think if this had gone before a different arbitrator or a court the result may have been different but that’s, you know, part of the complication here is people who think that there is an easy answer or a hard and fast rule are wrong.
We are going to be looking at every case based upon their own specific set of circumstances and frankly which judge or arbitrator you get is going to matter which means that over the next few years as more and more of these cases make their way through the system we are not going to see entirely consistent results, we’re going to see some mixed results, and it’s very possible that appeals courts are going to have to be involved to give us some guidance because at this point most people are in wait and see mode and they’re waiting to see what other people are going to do, what other courts and arbitrators are going to say. But at this point as we move away from vaccination we have our first case in which a religious exemption, a religious basis for not being vaccinated was upheld.
At this point we’ll have to wait to see if there are more. That’s all for today thanks for tuning in.
