Canada: Arbitrator Reinstates Employee Dismissed For Just Cause For Not Providing Proof Of Vaccination

In Teamsters Canada Rail Conference v VIA Rail Canada Inc., 2023 CanLII 18498 (CA SA) the Company terminated an employee with 19 years of service for not providing proof of vaccination against COVID-19.

The Company had implemented a mandatory vaccination policy and argued that the employee's dismissal was an administrative dismissal rather than a disciplinary dismissal. The union argued that the Company's actions were disciplinary and that the dismissal was void because the mandatory process for implementing discipline set out in the collective agreement was not followed.

The Arbitrator concluded that the termination of the employee's employment was a disciplinary measure and that since the Company did not comply with the provisions of the collective agreement, the dismissal was void. Furthermore, the Arbitrator concluded that the Company did not have just and sufficient cause to dismiss the employee, and ordered the reinstatement of the employee.

The Arbitrator found that the dismissal was disciplinary because the mandatory vaccination policy outlined the applicable penalty for unvaccinated employees and the Company also added disciplinary consequences for non-vaccinated employees. The policy stated that employees who are not fully vaccinated would be "... immediately placed on administrative leave without pay and their status as employees will be reviewed and subject to disciplinary measures, up to dismissal."

In addition, the Arbitrator also relied on previous findings by other Arbitrators who concluded that discipline, at least initially, was unreasonable for employees who did not comply with policies addressing COVID-19. The Arbitrator found that the Company could not explain why it felt it was necessary to dismiss the employee rather than keep him on a leave without pay. Accordingly, the Arbitrator concluded that the policy was unreasonable at least in regards to the disciplinary measures.

As a result, since the Company did not follow the process for implementing discipline in the collective agreement, the disciplinary action was deemed to be void and the employee was reinstated.

Takeaways for Employers

Although the decision in this case is not the result that employers were hoping for, each case involving measures taken to address employees who refuse to follow mandatory vaccination policies will turn on the specific facts of the case. However, it's essential that any mandatory vaccination policy implemented by an employer be reasonable in the circumstances.

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