Introduction
2024 brought some interesting arbitration decisions addressing a wide range of workplace issues, from mandatory vaccination policies and employee privacy rights to workplace misconduct and the limits of arbitral jurisdiction. This article highlights a few we thought were worthy of mention.
Notable Decisions
Cliques, Computers, and the Constitution: the Charter Protects Teachers’ Privacy Rights at Work
1. York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22
On June 21, 2024, the Supreme Court of Canada released its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, confirming that public school teachers are entitled to privacy protections under Section 8 of the Canadian Charter of Rights and Freedoms when workplace searches are conducted by their employer. The case arose when a principal accessed a cloud-based, password-protected log maintained by two teachers without their consent. The log, which contained critical remarks about a colleague, was accessed via a school-owned computer and used as the basis for disciplinary action. While lower courts were divided on whether the Charter applied, the Supreme Court ultimately held that Ontario school boards, as governmental entities, are subject to the Charter and must respect employees’ privacy rights in workplace investigations.
The Supreme Court emphasized that state actors conducting workplace searches must balance individual privacy rights against legitimate operational needs. While the Court did not confirm that the teachers’ privacy rights were breached in this instance, it underscored the need for careful analysis under Section 8 of the Charter in the labour arbitration context. Arbitrators must explicitly address Charter rights when evaluating such cases, ensuring that decisions incorporate constitutional and arbitral jurisprudence.
This ruling has broader implications for public employers, particularly those operating as “creatures of statute,” such as school boards and other public institutions. Employers must be mindful of their obligations under the Charter when conducting workplace searches or investigations, even as they address operational and disciplinary concerns.
For more information, see our original reporting here.
When Private Messages Become Workplace Issues
2. Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900
A group of five employees in the construction industry exchanged text messages in a private WhatsApp chat where they made sexist and derogatory comments about one of their female colleagues. Arbitrator Luborksy of the Grievance Settlement Board initially concluded that these messages did not amount to just cause for termination, emphasizing the private nature of the communications and noting that the female employee involved neither filed a harassment complaint nor wished to participate in the investigation. However, on judicial review, the Superior Court found that the arbitrator’s decision failed to consider broader legal obligations under workplace harassment laws, and relied on several outdated and sexist misconceptions regarding cases of this nature.
The Occupational Health and Safety Act (OHSA) mandates employers to investigate both complaints and incidents of harassment, even in the absence of a formal complaint. The duty to investigate is owed to the complainant and the workplace as a whole. Relying on victim participation or expectations of how a victim should act is legally insufficient, as the employer’s responsibility is to maintain a safe and respectful workplace environment for all employees.
While the WhatsApp messages originated in a private forum, they became a workplace issue when screenshots of them were shared among employees and reached the workplace environment. The nature of social media and the ease of forwarding messages meant the offensive content inevitably entered into and affected the workplace. This underscores the principle that harassment, even when originating outside the physical workplace, must be addressed if it impacts the work environment.
The Court ordered the matter to return to a different arbitrator for a new hearing, reflecting the Superior Court’s directive for a balanced consideration of workplace harassment policies and employee privacy rights. The Union has sought leave to appeal the Superior Court’s decision to the Court of Appeal.
Arbitration Limits in Post-Employment Disputes
3. Canadian Union of Public Employees, Local 79 v Toronto (City), 2024 CanLII 94967 (ON LA – Fishbein)
In Canadian Union of Public Employees, Local 79 v. Toronto (City), the arbitrator addressed two preliminary objections raised by the employer. The union had alleged that an employee was constructively dismissed and continued to suffer harassment and discrimination for eight months after the end of their employment. However, the arbitrator ruled that these issues were outside the scope of their jurisdiction, emphasizing that grievances under a collective agreement are intended to address disputes arising during employment and cannot extend to incidents occurring after the employment relationship has ended.
The arbitrator also clarified that the doctrine of constructive dismissal is inapplicable in the context of unionized workplaces. Unlike common law employment relationships, unionized employees are governed by collective agreements, which cannot be unilaterally repudiated. The arbitrator highlighted that remedies for unionized employees primarily involve reinstatement, a form of specific performance unique to the collective bargaining framework, rather than damages for breach of contract. As a result, the concept of constructive dismissal, rooted in common law principles, has no place in the labour relations context.
COVID-19 Precautions and Employee Conduct
4. Birla Carbon Canada Ltd. v Teamsters Local Union No. 879, 2024 CanLII 80299 (ON LA – C. Johnston)
In Birla Carbon Canada Ltd. v. Teamsters Local Union No. 879, an arbitrator upheld the termination of an employee who returned to work from sick leave without authorization during the early days of the pandemic in March 2020. The employee, who had been diagnosed with strep throat, returned to work when he began to feel better but failed to notify management of his return. This denied the employer the opportunity to assess whether he posed a public health risk to others in the workplace. The arbitrator emphasized that work scheduling is a management function, and employees cannot unilaterally decide when to return.
The grievor’s conduct was found to be deliberate, and the termination was upheld. This decision is particularly notable as it addresses a pandemic-related issue unrelated to vaccine mandates or masking, focusing instead on the fundamental employer right to manage workplace health and safety during unprecedented public health challenges.
Professional Sports and Zero-Tolerance Policies
5. Canadian Football League v Lemon, 2024 CanLII 81455 (AB GAA – Ponak)
In Canadian Football League v. Lemon, a CFL player was placed on indefinite leave after being caught engaging in sports betting, including a bet on a game involving his own team. While the amounts wagered were small—73.46 euros in total—the nature of the misconduct was considered extremely serious. One bet involved a game outside his team, and the other involved his team; however, because the first bet lost, the outcome of the second bet was irrelevant.
The arbitrator upheld the indefinite suspension, emphasizing that betting on games within one’s own league is one of the most egregious violations a player can commit, with a long history of being harshly punished in professional sports. The grievor, as a professional athlete, was deemed to have known that his conduct was unacceptable, reinforcing the decision to maintain the suspension.
Safety Violations Override Lengthy Service
6. Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada, 2024 ONSC 3881
In Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada, the Ontario Divisional Court upheld arbitrator Levinson’s decision regarding an employee’s termination for violating several safety protocols, including the lockout tagout procedure. During the afternoon shift on June 12, 2020, a spill of cases of beer caused the bottle line to stop. The Grievor and other employees were working to clean up the spill. One case of 24 beer bottles was stuck inside and near the top of the “hoist” of one of the palletizers, several feet above ground level. Without making a required risk assessment and after locking out some but not all energy sources, the Grievor climbed to the upper level of the palletizer. Without any fall protection, he reached into the hoist over an opening in an attempt to remove the stuck case. The cardboard case split open, preventing him from pulling the case up to the palletizer’s upper level. Instead, he swung the case out and let it drop to the ground. Some of the glass beer bottles shattered, creating a safety risk for workers below.
Arbitrator Levinson concluded that the grievor’s actions created a significant safety risk and that his actions were egregious and exceptional, justifying termination.
One of the issues before the Court was whether the arbitrator properly considered the mitigating factor of the grievor’s long service with the company. Although the grievor had a total of 16 years of service, only 5.7 years of seniority were considered, as the additional 10 years fell outside the scope of the collective agreement’s provisions. Further, the discipline provision expressly required consideration of “seniority” not “service. The Court found that the arbitrator had properly weighed the mitigating and aggravating factors and concluded that the seriousness of the safety violation outweighed other mitigating factors.
Balancing Privacy and Policy Enforcement
7. ATCO Electric Ltd. (ATCO) v Canadian Energy Workers Association (CEWA), 2024 CanLII 37038 (AB GAA – Casey, Axelrod, Neuman)
In ATCO Electric Ltd. v. Canadian Energy Workers Association, the grievor, a Power Line Technician in a safety-sensitive role, was involved in a workplace injury that triggered the employer’s requirement for drug testing. What followed was a series of actions by ATCO that the board of arbitration found were significant privacy violations justifying an award of $7,500 in general damages to the grievor. As the arbitrator remarked, the case raised fundamental questions about balancing employee privacy rights with corporate policies, underscoring the principle that “a person’s home is their castle.”
The employer’s conduct was found to be unreasonable at several points. After the injury, ATCO attempted to inform the grievor of the testing requirement while he was on his way to the hospital. Supervisors followed him to the hospital, entering his exam room and discussing drug testing while he was in pain and awaiting surgery. In the hospital parking lot, supervisors attempted to physically assist the grievor into a vehicle to take him to a testing site, exacerbating his injuries and prompting him to exclaim, “I fucking quit.” The intrusion escalated later that evening when a supervisor arrived uninvited at the grievor’s home around 9 p.m. to deliver a pamphlet about mandatory testing. Although the grievor expressed a willingness to comply with testing, he requested mobile testing or medical transport due to his injuries, which the employer failed to accommodate.
The arbitrator found that while ATCO had legitimate grounds to request drug testing and acted appropriately in certain aspects, such as obtaining implied consent for being in the exam room and taking x-rays, its actions at the grievor’s home were particularly egregious. The uninvited late-night visit to the employee’s private residence, coupled with the broader context of enforcing an intrusive drug testing policy, constituted a significant violation of the grievor’s privacy rights. The arbitrator concluded that ATCO’s administration of the policy was unreasonable and failed to balance its corporate objectives with the grievor’s fundamental right to privacy. As a result, ATCO was ordered to pay $7,500 in general damages.
Vaccine Mandates and Proportional Discipline
A series of key arbitration decisions addressed mandatory vaccination policies in Ontario hospitals, balancing workplace health and safety with employee rights. These decisions illustrate the importance of proportionality in enforcing vaccination mandates. Our top picks are below.
8. Quinte Health v Ontario Nurses Association, 2024 CanLII 14991 (ON LA – Hayes)
An arbitrator ruled that the hospital’s mandatory vaccination policy was unreasonable to the extent that it mandated the automatic dismissal of unvaccinated nurses without allowing for unpaid leaves of absence. The arbitrator emphasized that placing non-compliant nurses on unpaid leave would have achieved the same safety objectives as termination by removing them from the workplace, without exacerbating the hospital’s severe nursing staff shortages, which already included 350 vacancies unrelated to the vaccination policy. The arbitrator also criticized the rigidity of the policy, noting the fluid nature of the pandemic and the availability of evolving research, which could have allowed for a more flexible and periodically reviewed approach.
For more information on this case, see our original reporting here.
9. Humber River Hospital v Teamsters Local Union No. 419, 2024 CanLII 19827 (ON LA – Parmar)
An arbitrator found that while the hospital’s mandatory vaccination policy was otherwise reasonable, it lacked just cause to terminate the employment of two employees who failed to comply with it. The arbitrator concluded that non-compliance with a vaccination policy, which involves personal consent to medical treatment and disclosure of private medical information, is not grounds for disciplinary action. However, the arbitrator noted that this does not obligate the employer to allow unvaccinated employees to remain in the workplace; instead, the policy could be enforced through non-disciplinary measures, such as unpaid leaves or, in some cases, non-disciplinary termination.
For more information on this case, see our original reporting here.
10. London Health Sciences Centre v Unifor Local 27, 2024 CanLII 48714 (ON LA – Wright)
An arbitrator addressed whether the hospital had just cause to terminate a grievor who refused to comply with its mandatory COVID-19 vaccination policy. The policy required all staff to provide proof of vaccination by October 22, 2021, and explicitly warned that non-compliance could result in discipline up to termination. The grievor informed the hospital she would not be vaccinated and was terminated on the deadline date. While the reasonableness of the policy itself was not challenged, the issue centered on whether the termination was justified.
The arbitrator found that non-compliance with a vaccination policy could constitute grounds for discipline under extraordinary pandemic circumstances. However, the arbitrator concluded that the hospital had not established just cause for termination because there was no progressive discipline, which would have allowed the grievor an opportunity to reflect on the consequences of her decision. Instead of upholding the termination, the arbitrator substituted a 30-day suspension but declined to order compensation or clarify the grievor’s future employment status, citing the ongoing vaccine mandate, the grievor’s refusal to comply, and her expressed comfort with that decision. The arbitrator left the resolution of the grievor’s precarious employment situation to the parties.
For more information on this case, see our original reporting here.
11. National Organized Workers Union (NOWU) v Humber River Hospital, 2024 CanLII 52386 (ON LA – Tremayne)
In this arbitration, two policies implemented by the Hospital during the COVID-19 pandemic were challenged. The first, introduced in August 2021, allowed staff, physicians, and volunteers to either provide proof of vaccination or a medical exemption or attend education sessions and undergo twice-weekly testing. The second, introduced in December 2021, removed the testing and education options, requiring all employees to provide proof of vaccination or face discipline up to termination. The Union argued that both policies were unreasonable, citing government directives, vaccine efficacy, and employee autonomy, among other objections.
The arbitrator upheld the mandatory vaccination policies, finding them reasonable under a “balancing of interests” test. The arbitrator rejected the Union’s claims that the policies lacked a valid safety purpose, exposed employees to harm, and failed to consider alternative measures. Instead, the arbitrator emphasized the material evidence supporting vaccines’ effectiveness in reducing severe illness and the Hospital’s duty to protect vulnerable patients. While acknowledging the employees’ privacy and autonomy concerns, the arbitrator noted that working in an acute care setting imposes unique responsibilities, including adherence to reasonable measures designed to protect patients and staff. Given the significant risk posed by COVID-19 in a hospital environment, the arbitrator concluded that the termination of employment for non-compliance with the vaccination policy was a reasonable disciplinary response.
For more information on this case, see our original reporting here.
12. Ontario Public Service Employees Union, Local Unit 461 v. Hawkesbury and District General Hospital, 2024 CanLII 51817 (ON LA – Flaherty) (in French)
In this case, the Union did not dispute the reasonableness of the Hospital’s mandatory vaccination policy but challenged the termination of the grievor’s employment for non-compliance. The grievor, who was pregnant at the time the policy was implemented, strongly opposed vaccination, asserting that it was illegal and unconstitutional. After a lengthy administrative leave, the Hospital terminated her employment on March 22, 2022, citing her refusal to comply with the policy as undermining the employment relationship and the hospital’s duty to protect the health and safety of staff and patients.
The arbitrator dismissed the grievance, finding that the termination was based on non-disciplinary grounds. The arbitrator determined that it was reasonable for the Hospital to conclude that the grievor would be unable to fulfill the fundamental obligations of her role in the foreseeable future, given her consistent refusal to comply with the vaccination requirement. The hospital took a measured approach, placing her on unpaid leave for more than four months and repeatedly warning her that her employment was at risk before ultimately terminating her. Despite her eight years of service and clean disciplinary record, the arbitrator held that these factors did not outweigh the Hospital’s obligation to ensure workplace safety, particularly in the context of the fluid and evolving nature of the pandemic.
For more information on this case, see our original reporting here.
13. William Osler Health System v Canadian Union of Public Employees and its Local 145, 2024 CanLII 76299 (ON LA – Stout)
An arbitrator addressed a policy grievance regarding employees terminated for failing to comply with the hospital’s mandatory vaccination policy. The policy required employees to receive two doses of the COVID-19 vaccine, with non-compliance resulting in suspension and eventual termination. Of the 42 bargaining unit members suspended, 40 were terminated.
The arbitrator determined that the terminations were for “just cause” under the collective agreement, distinguishing this case from other arbitral decisions where termination for vaccine non-compliance was deemed unjust. However, he also found that the employees’ actions did not meet the definition of “wilful misconduct, disobedience, or wilful neglect of duty” under the Employment Standards Act, 2000. As a result, the terminated employees were entitled to statutory notice and severance pay. The decision, issued under section 50 of the Labour Relations Act, 1995, was expressly limited to the unique circumstances of this case and reserved both parties’ positions for future matters.
For more information on this case, see our original reporting here.
14. Humber River Hospital v Teamsters Local Union No. 419, 2024 CanLII 98578 (ON LA – Parmar)
An arbitrator had issued a decision in March 2024, finding that the Hospital’s termination of two unvaccinated employees was unjust. In this decision, the arbitrator dealt with the issue of remedy. By the time the remedy hearing took place, the hospital had revoked its mandatory vaccination policy. The grievors had also previously indicated their unwillingness to return to work. The Union sought damages in lieu of reinstatement, arguing that the employment relationship was irreparably broken. At the same time, the Hospital maintained that reinstatement remained the presumptive remedy in unjust termination cases and denied any breakdown in the relationship.
The arbitrator sided with the Hospital and upheld reinstatement without compensation for lost wages, finding no exceptional circumstances to depart from the standard remedy of reinstatement in unjust termination cases. The grievors were ordered to be reinstated without loss of seniority, provided they confirmed their intention to return to work within seven days. Failure to do so would result in them being deemed to have resigned.
For more information on this case, see our original reporting here.
Final Takeaways
The above cases illustrate several key trends and principles:
- Public school teachers are entitled to privacy protections under Section 8 of the Canadian Charter of Rights and Freedoms when workplace searches are conducted by their employer.
- Harassment in private forums, such as WhatsApp chats, can become a workplace issue if it impacts the work environment, requiring employers to act even without a formal complaint.
- Constructive dismissal is inapplicable in unionized settings.
- In safety-sensitive roles, strict adherence to safety protocols remains critical, with violations potentially justifying termination regardless of seniority.
- The enforcement of mandatory vaccination policies requires a proportional and context-specific approach, with decisions increasingly emphasizing alternatives to termination, such as unpaid leaves.
- Privacy rights must be balanced with workplace policies, as highlighted in cases involving invasive employer actions like uninvited visits to an employee’s home.
- Reinstatement remains the presumptive remedy in unjust termination cases.
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