a) Mandatory Vaccination – Vaccination requirement reasonable, but automatic dismissal not appropriate
Quinte Health v Ontario Nurses Association (Hayes, February 28, 2024)
The Hospital had a policy requiring all staff to be immunized against Covid-19 as a condition of employment (absent a valid exemption under the Human Rights Code). All employees who were not fully vaccinated or exempted by October 2021 were automatically terminated. This policy led to the termination of 9 ONA members’ employment with the Hospital. ONA argued that the mandatory vaccination policy was unreasonable due to the policy provisions mandating automatic termination for non-compliance.
Arbitrator Hayes, citing a previous decision relating to mandatory influenza vaccinations, stated,
…medical expertise has a different focus that is incomplete for the purposes of the legal question at issue. While important in assessing what is reasonable, the medical expertise is not controlling in and of itself because it does not engage the labour/human rights/privacy expertise that balances employee rights with scientific information.
The fundamental question at play was not whether the policy was supported by medical evidence, but whether the policy was reasonable in the circumstances.
Arbitrator Hayes began by addressing the issue of whether it was reasonable to implement a mandatory vaccination policy. He noted that the policy was crafted as a real-time response to the pandemic, in a situation in which “Common sense judgments had to be made without the security of scientific certainty or even broad interim consensus.” As such, based on the knowledge that was readily available in the fall of 2021, the Hospital acted reasonably in implementing the policy. The Hospital’s explanations that the policy was adopted using a “safety-first” rationale were accepted.
Arbitrator Hayes then turned to the question of whether it was reasonable to terminate employees for non-compliance with the policy.
The policy did not allow for exceptions, other than exemptions under the Human Rights Code, stating, “if at any time an employee advises QHC that they do not intend to comply with the terms of the Policy, even if for reasons important to them, that employee will be terminated for cause immediately”. The employee’s personal circumstances were immaterial.
Disagreeing with the decision in Central West, Arbitrator Hayes found that it is not “plain and obvious” that employers should be required to place non-compliant employees on indefinite leaves of absence until they “could demonstrate harm to their legitimate business interests, or until there was no longer a need for the requirement.” A more fulsome investigation of the rationales for the automatic termination provision was required.
The Hospital provided three rationales for the automatic termination provision: (1) the provision would protect the safety of patients and staff; (2) allowing unvaccinated staff would harm the Hospital’s recruitment abilities; and (3) indefinite leaves would be untenable, given that the Hospital did not foresee any shirt or mid-term change for the vaccine requirement.
From a safety perspective, it was “plain and obvious” that “the removal of unvaccinated nurses would have served the same safety objectives as terminations, given the Hospital’s concerns. If nurses had been placed on indefinite unpaid leaves, they were gone.” Furthermore, the Hospital did not amend the policy to require the remaining staff to receive booster doses of the vaccine, as the Hospital’s retention needs outweighed the safety risks of not getting the booster. The Hospital’s first rationale was rejected.
The Hospital had difficulty recruiting nurses, however, Arbitrator Hayes did not find that this difficulty informed the Hospital’s decision to enforce the mandatory termination provision of the policy. The Hospital’s second rationale was also rejected.
Finally, there was no certainty that the Hospital’s policy would not be changed in the months after it was implemented. At that point in the pandemic, the scientific understanding of the virus and the recommended preventative measures were constantly changing. The Hospital could have allowed staff to go on unpaid leave pending any changes to the mandatory vaccination policy. It would not have harmed the Hospital to have placed unvaccinated employees on leave. The Hospital’s third and final rationale was rejected.
Reviewing the relevant case law, Arbitrator Hayes found that while the policy was driven by genuine safety concerns, it failed to balance employee interests. As such, while it was reasonable to implement a mandatory vaccination policy, it was unreasonable to have automatic termination because of non-compliance.
The issue of remedy was referred back to the parties.
b) Mandatory Vaccination – Termination of unvaccinated employees was unreasonable
Humber River Hospital v Teamsters Local Union No. 419 (Parmar, March 11, 2024)
In December 2021, the Hospital implemented a policy requiring all employees to provide proof of vaccination against COVID-19.
The two grievors, who worked as part-time clerical staff, refused to comply with the mandatory vaccination policy. The grievors were placed on a 2-week unpaid leave of absence after which they were terminated for continued non-compliance.
There was no dispute in this case that implementing a mandatory vaccination policy was reasonable. The grievance centred on whether the terminations were justified.
Arbitrator Parmar addressed the issue of whether the Hospital could discipline an employee for refusing to provide personal health information or undergo a medical examination or procedure. After canvassing the jurisprudence, Arbitrator Parmar concluded that “refusal to consent to disclose medical information or undergo a medical examination is not conduct justifying a disciplinary response, but may justify other employer actions”.
As we reported back in April, Arbitrator Herman upheld the disciplinary termination of unvaccinated hospital employees in Lakeridge Health v CUPE, finding that,
[174] It is a legitimate response to a breach of the Policy to discipline employees who refused to comply with the reasonable requirement that they be vaccinated in order to protect other employees, patients and Hospital visitors. Employees were not forced to get vaccinated, they were required to get vaccinated only if they wished to continue to work for the Hospital.
Arbitrator Parmar challenged the findings in Lakeridge Health, stating that the Lakeridge Health decision did not “grapple in any meaningful way” with the principle that employees should not be disciplined for refusing to disclose personal health information.
Arbitrator Parmar emphasized that “the analysis of whether a rule or policy is reasonable is separate from an analysis of whether there is just cause for discipline for breach of that rule.” The grievors had the right to refuse vaccination, and the exercise of that right did not warrant discipline.
Arbitrator Parmar concluded that the Hospital did not have the right to discipline its employees for refusing to become vaccinated:
[47] … The fact that the Hospital has a reasonable vaccination policy also does not eliminate the grievor’s right of medical consent… While a result of the grievors’ exercise of their right not to be vaccinated meant they were not in compliance with the Hospital’s policy, the mere fact that the grievors were unwilling to have a vaccine injected into their bodies cannot fairly be characterized as an act of insubordination, or some other culpable conduct. Consent to medical procedures or disclosure of private medical information is not an area that falls under the employer’s sphere of authority. Whether or not to be vaccinated is the individual’s decision to make. To respond to an employee’s exercise of that individual right with discipline is to say that they are deserving of censure for having exercised their choice in a manner differently than that directed by the employer. The jurisprudence is clear – that is not a permissible employer response to the exercise of this right.
The disciplinary terminations were not justified.
Arbitrator Parmar then turned to the question of whether the Hospital had non-culpable grounds on which to terminate the grievors’ employment.
After reviewing the relevant jurisprudence, Arbitrator Parmar set out two key considerations when determining whether a non-culpable termination would be justified for non-compliance with a mandatory vaccination policy:
- Do the employer’s actions appropriately balance the employer’s operational interests with that of the employee’s interests in retaining his or her employment?
- Was there any reasonable likelihood of change to the situation in the foreseeable future warranting the continuation of the balancing of these interests?
This approach recognizes that “there must be a point where the employer, unable to obtain the basic benefit expected from an employment relationship – that is, having an employee perform work – is able to end the employment relationship.”
In this case, Arbitrator Parmar determined that allowing the grievors to remain on unpaid leave, past the date on which they were terminated, would not have placed an unreasonable burden on the Hospital. There was no evidence that having the grievors remain on leave would have affected the Hospital’s staffing challenges. The Hospital is a large institution with thousands of employees; allowing two employees to remain on leave for more than two weeks would not have materially impacted staffing. Therefore, the first consideration was not satisfied.
Arbitrator Parmar further found that it was not clear that the situation would persist. When the grievors were terminated in February 2022, it was not clear that the mandatory vaccination policy would remain in place indefinitely. Furthermore, there was no evidence that the grievors would not have changed their mind and consented to be vaccinated once they had been off work for a longer stretch of time.
The terminations were not justified on either disciplinary or non-culpable grounds.
a) Overtime Grievance – More senior employee entitled to portion of missed pay
The Ottawa Hospital v CUPE Local 4000 (Kaplan, March 4, 2023)
The Hospital had improperly awarded overtime shifts, resulting in junior employees being assigned overtime instead of a more senior employee.
In a very short award without detailed analysis or reference to the relevant collective agreement provisions, Arbitrator Kaplan ordered the Hospital to pay the more senior employee 70% of the value of the missed opportunity. Further, arbitrator Kaplan ordered that should the same sort of incident occur in the future, the Hospital will be required to pay the more senior employee 70% of the missed opportunity.
Editor’s note: The award is unique to the parties and should not be viewed as a precedent that the remedy for a missed overtime opportunity should always be 70%.
b) Scheduling Grievance – Hospital estopped from scheduling on weekends
Service Employees International Union Local 1 Canada v Southlake Regional Health Centre (Mohammed, March 11, 2024)
For years, the Hospital had scheduled its full-time Environmental Services staff on a Monday-to-Friday basis. The Hospital announced its intention to begin scheduling the Environmental Services staff on weekends, as well as during the week. There was nothing in the collective agreement precluding the Hospital from doing so. The union argued that the Hospital was estopped from scheduling the full-time Environmental Services staff on weekends.
The parties were in central and local bargaining at the time of the award.
Arbitrator Mohammed determined that the Hospital would be estopped from scheduling these employees on weekends, pending the renewal of the local agreement.
Once a new local agreement is in place, the Hospital will be able to exercise its management rights to regularly schedule the full-time employees on weekends, unless the agreement contains language to the contrary.
c) Job Posting – Exact hours of work must be included in posting
William Osler Health System v Canadian Union of Public Employees, Local 145 (Johnston, March 14, 2024)
The parties were in dispute over whether, when posting notice of a job vacancy, the Hospital was required to include the actual hours of the shift to be worked. The Hospital’s postings already included the general time of day of the shift (i.e. evening, day, night, etc.), but not the start and end times of the shifts.
The collective agreement contains the following language:
The posting shall stipulate the qualifications, classifications, rate of pay, department and shift and a copy shall be provided to the Chief Steward.
Arbitrator Johnston quoted Perth and Smiths Falls District Hospital v Canadian Union Public Employees, Local 2119:
The Employer’s practice of not indicating the actual shift, but of posting a generic shift description, “days/evenings/weekends” or “days/evenings/nights”, is not accurate when it is applied to the environmental services department. There the employees do not work rotating shifts, which arguably, these descriptions might satisfy. The housekeeping employees work the same shift each week, with particular starting and finishing times each day. That is the shift that the collective agreement requires must be posted: the actual shift that the successful candidate will be expected to work.
As the Union argued, by not giving accurate information of what shift will be worked, the Hospital deprived bargaining unit employees of essential information they needed (whether the shift to be worked suits their personal circumstances) in order to determine whether or not they wanted to apply for the position. Knowing which shift a vacant job posting is for ensures that all employees across the bargaining unit have an equal opportunity to use their seniority to make an informed decision on whether to apply.
To the extent that the Hospital knows the exact hours to be worked, those hours are required to be included in the job posting. Posting these hours would not affect the Hospital’s ability to make changes to the shifts, in accordance with the terms of the collective agreement.
d) Premium Pay – Entitlement applies only when employees “must stay” past end of shift
Health Sciences North v Ontario Nurses’ Association (Albertyn, March 15, 2024)
Three nurses grieved that they were not provided with premium pay as required by the collective agreement.
The first grievor had less than 10 hours off between her first 12-hour shift and her second and sought premium pay for the second worked shift. She had taken on the overtime work voluntarily.
The second grievor was asked to stay on for additional hours after their scheduled shift had ended, due to critical short staffing. They were denied premium pay for the next shift worked.
The third grievor worked a 4-hour standby shift after her regular 8-hour shift. She did not have 14 hours off between the end of her standby shift and the start of her next shift. She was denied premium pay for this last shift.
The Hospital argued that the premium pay only applies where the employee is required to stay at work. The Union argued that premium pay applies where the work is offered and accepted, regardless of whether it was accepted voluntarily.
The collective agreement contains the following language:
When a nurse works twelve (12) hour shifts and must stay to work overtime and does not receive ten (10) hours off between the end of the overtime and the start of her/his/their next shift, she/he/they will receive premium pay for all hours worked on that next shift.
When a nurse works seven and one half (7.5) hour shifts and must stay to work overtime and does not receive fourteen (14) hours off between the end of the overtime and the start of her/his/their next shift, she/he/they will receive premium pay for all hours worked on that next shift. (emphasis in original)
Arbitrator Albertyn found that the premium described in the collective agreement only applies when the nurse was required to stay for the extra overtime. Merely accepting a shift when offered, or responding to a request to stay working, will not trigger the premium pay provisions in the collective agreement.
The provisions will apply in situations in which the employee is told by a manager that they “must stay”, or where a nurse informs their manager that they must stay due to reasons of professional responsibility, and the manager agrees. A manager must make it clear that they are directing the nurse to stay in order for this provision to apply.
e) Related Employers – Union did not satisfy test for related employer finding
National Organized Workers Union (“NOWU”) v Humber River Hospital (“HRH”) (Liznick, February 27, 2024)
NOWU argued that Humber River Hospital (the “Hospital”) and Humber Meadows Long Term Care Home (the “Care Home”) are related employers. The Hospital owns the facility in which the Care Home is located, and leases it to Care Home on a 30-year lease.
NOWU holds bargaining rights for employees of the Hospital, but not of the Care Home.
The Board set out the test for a prima facie related employer finding as follows:
- There is more than one corporation, individual, firm, syndicate or association involved;
- The employers concerned carry on related or associated activities or business;
- The activities or businesses are under common control or direction; and
- A labour relations purpose for making a related employer declaration.
After submitting its application to the Board in April 2023, NOWU made subsequent, untimely, additional submissions in May 2023 and in February 2024. The Board considered whether the initial April 2023 application included material facts to support the test above, and whether it should accept the additional facts as pleaded.
Based on the initial April 2023 submissions, the Board determined that the first step of the test was met – there were two material entities, the Hospital and the Care Home.
In support of the second step of the test, the question of whether the Hospital and the Care Home carried on associated activities or businesses, the Board found that NOWU’s application contained “bald allegations” that were not supported by material facts:
[54] …The only facts pled by NOWU are that HM is being built on HRH’s land, that an announcement about the HM was made by HRH and the assertion that some, but not all and not a majority, of the Directors of HM are also some, but not all and not a majority, of the Directors of HRH. The pleadings do not contain any allegations of the involvement of either of the Boards of Directors, or any of the Directors on either Board, being involved in the day-to-day operations and labour relations of either HRH or HM. These pleadings are not sufficient to discharge the obligation to plead a prima facie case for the common control and direction of the responding parties.
The initial application did not satisfy the second step of the test. Accordingly, it also failed to show that there was common control or direction between the Hospital and the Care Home, or that there was a labour relations purpose to make a common employer finding, pursuant to the third and fourth steps of the test. As such, the initial application failed to set out a prima facie case for the Board to declare the Hospital and the Care Home to be common employers.
The Board found that even if it considered the additional May 2023 submissions, NOWU still would not have satisfied its obligation to prove its prima facie case.
In August 2023, SEIU submitted a certification application for bargaining rights at the Care Home. The Board did not allow NOWU to rely on its February 2024 submissions as doing so would result in substantial prejudice to SEIU.
As such, NOWU’s application was dismissed.