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Month: February 2022

Duty of Fair Representation in Unions Opposing Mandatory COVID-19 Vaccines

by Stacey R. Ball| | General

As mandatory vaccine policies continue to be implemented in workplaces across Ontario, many unionized employees are under the impression that their unions have a duty to stand up for them and oppose such mandates. Those employees who face termination of employment without cause or another discipline as a consequence of their inability or failure to comply with vaccine mandates often expect their unions to grieve such discipline. To their surprise, not all unions are willing to do so.

We have started to see many unionized employees alleging that unions who fail to oppose mandatory vaccine policies are in breach of their duty of fair representation. The “duty of fair representation” says that a union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing employees.

Unfortunately for these employees, a recent decision of the Ontario Labour Relations Board might signal that unions are not in breach of their duty of fair representation where they are unsuccessful in defending employees from mandatory vaccine policies.

The Facts: Tiffany Bloomfield v Service Employees International Union

Each of the employees in this case were Personal Support Workers who worked for an employer who provides home healthcare services. That employer, like so many other employers, introduced a COVID-19 vaccination policy. The union advised employees that a grievance could be filed regarding the vaccine policy, but that such grievances were unlikely to succeed and that employees who refused to be vaccinated without some valid exemption risked discipline or dismissal.

On November 30, 2021, the employees were placed on unpaid leave in accordance with the policy. That same day, the union filed a group grievance which, as of the date of this decision, was still ongoing.

The Decision: No Breach of Duty of Fair Representation

The Labour Relations Board, after reviewing all the facts, concluded that the employees had “no reasonable chance of success in establishing a violation of the duty of fair representation.” In the Board’s view, their application boiled down to a complaint about the employer’s vaccine policy and their belief that the union should support their decision to remain unvaccinated “without qualification or question”. Ultimately, this was not an application about the union’s conduct being arbitrary, discriminatory or in bad faith.

The employees continuously asserted their belief that the employer’s policy was unfair and contrary to the collective agreement. When advised that they must refer to the union’s conduct, they pointed to three perceived failings on the part of the union:

  • the union had not communicated sufficiently with them and/or had discouraged them from “taking action”;
  • the union should have taken steps to challenge the policy before November 30, 2021; and
  • the union was not taking enough action with respect to the already ongoing grievance.

In the Board’s view, none of the above complaints established a prima facie breach of the duty of fair representation. Regarding the union’s communications, the union had been very clear with their members on the legal advice they had received and what the union determined to do in response. The union did not fail to communicate with their members about the policy. Furthermore, regarding the timing of the grievance, the Board noted that unions are not even required to file grievances in order to meet their duty of fair representation. As long as the union does not conduct itself in a manner that is arbitrary, discriminatory or in bad faith, they do not need to file a grievance by a particular date or proces it in a particular manner. According to the Board in Harkin v. Canadian Union of Brewery and General Workers Component 325:

“… merely refusing to file a grievance does not constitute a breach of the duty of fair representation.  Any breach of the duty of fair representation arises not from the fact that the union made a choice as to whether to file a grievance, but from the manner in which that choice was made: the facts stated in the application must allow the Board to conclude that the union has acted in a manner that was arbitrary, discriminatory or in bad faith.”

Obviously, this is bad news for unionized employees who believe their unions are obligated to file grievances on their behalf. A union who does not file a grievance, according to the Board, is not necessarily in breach of the duty of fair representation unless the manner in which they chose not to file a grievance was arbitrary, discriminatory or in bad faith.

In this case, there was nothing to suggest that the union acted in a way that was arbitrary, discriminatory or in bad faith. For that reason, the application was dismissed.

Not About the Merits

This is not the only case in which the Board found a duty of fair representation case to be more about the merits of the vaccine policy than the conduct of the union. In another, Tina Di Tommaso v Ontario Secondary School Teachers’ Federation, the Board said:

“A duty of fair representation complaint at the Ontario Labour Relations Board is about a union’s conduct in the representation of its members. The Board is not the forum for debating or complaining about vaccination in general, this vaccine in particular, scientific studies, the government’s directions, and/or a particular employer’s policy.”

Moving forward, employees who wish to oppose their employer’s vaccine policy must be more careful in choosing the means by which they pursue that complaint. Their personal views about a mandatory vaccine policy is not part of the analysis in a duty of fair representation case.

Abandonment or Termination: Wong v Polynova Industries Inc.

by Stacey R. Ball| | General| | Wrongful Dismissal

Did the employee abandon their employment, or was their employment terminated by the employer? That was an essential question in the recent British Columbia Supreme Court decision, Wong v Polynova Industries Inc. We canvassed job abandonment in an earlier blog post, and revisit it today for the purpose of discussing this case.

Mr. Wong’s Absence

This case concerned Mr. Wong, a long-time employee of Polynova Industries Inc. He was 70 years old and had been working full-time with the employer for 15 years. In March of 2020, Mr. Wong informed a supervisor that he was not feeling well and that he would remain at home for a few days to rest. Evidently, those few days were not sufficient, as Mr. Wong later informed that supervisor that he would be isolating at home for an additional two weeks.

At this point, according to the trial judge, there was a “complete failure to communicate between the parties for over two months.” Mr. Wong did not attempt to communicate with his employer until his return to work in June, 2020. For their part, the employer had attempted to reach out to Mr. Wong, with no success, via two phone calls.  However, when these phone calls failed, the employer made no further effort to reach him. They did not communicate with him in writing or in any other formal manner. They did not tell him that if he failed to return by a certain date, he could lose his job. While Mr. Wong was away, the employer actually hired somebody to perform Mr. Wong’s job. They considered this employee his replacement.

Mr. Wong’s Return to Work

To the employer’s surprise, Mr. Wong returned to work in June of 2020. He met with the President of his employer, the details of which were disputed between the parties. Mr. Wong suggested the employer was laying him off, while the employer suggested that Mr. Wong had abandoned his position. Notwithstanding the abandonment, they offered him a severance package allegedly as a goodwill gesture.

Ultimately, Mr. Wong was delivered a Record of Employment which indicated “Quit” as the reason for its issuance. Obviously, Mr. Wong disagreed. What, then, is the correct legal characterization of the termination of Mr. Wong’s employment? Had he abandoned his employment, or had the employer terminated him?

Job Abandonment or Termination?

In the employer’s opinion, Mr. Wong abandoned his employment by failing to come to work for over two months without ever telling the employer why.  In their view, this amounted to a repudiation of the employment contract – a repudiation they clearly accepted when they hired a replacement worker. Mr. Wong, on the other hand, argued that he was on an extended leave of absence and that his employer was aware of this.

The trial judge believed that the evidence supported Mr. Wong’s position that he did not intend to resign his position. At the same time, it was objectively reasonable for the employer to conclude he had abandoned his job. There was, therefore, a repudiation. The result ultimately depended on whether or not the employer actually accepted Mr. Wong’s repudiation of the contract. They argued they had, but according to the trial judge, they did not. The trial judge relied on a number of reasons in support of this finding:

  • a)   The employer failed to make formal inquiries of Mr. Wong;
  • b)   The employer made only modest efforts to contact him at all;
  • c)   The employer failed to terminate his health benefits;
  • d)   The employer failed to put Mr. Wong on notice that his job was at risk; and,
  • e)   The employer failed to issue a Record of Employment to Mr. Wong until June 10, 2020, which happened to be two months after the date the employer alleged to have accepted the repudiation.

The trial judge believed the reason the employer did not issue a Record of Employment to Mr. Wong earlier was because they had not, in fact, accepted his repudiation of the employment contract. For that reason, there was no job abandonment nor resignation. Mr. Wong, therefore, had been terminated without notice.

In deciding the appropriate period of reasonable notice, the trial judge concluded that Mr. Wong was entitled to 15 months’ notice. He was awarded $52,500 for breach of the employment contract.

Vaccine Policy Upheld, Despite Privacy Concerns

by Stacey R. Ball| | General

On January 4th, only four days into the New Year 2022, Arbitrator Robert J. Herman released a decision regarding a COVID-19 vaccine policy put in place by the employer Bunge Hamilton Canada, Hamilton, Ontario (“Bunge”). This decision is among the first of many vaccine-related labour decisions we are sure to encounter as 2022 progresses. At issue was whether the COVID-19 vaccine policy violated employee privacy rights.

The vaccine policy in question contained the following requirement: “all employees … are required to be fully vaccinated by January 24, 2022. Attestation of vaccination must be provided by each employee …”

The stated purpose of the vaccine policy was, among other things, to “provide for a safe work environment during the COVID-19 pandemic and safeguard the health and safety of employees or dependent contractors, visitors and vendors.” Employees who did not comply with the policy, either by not being fully vaccinated or by not disclosing their vaccination status, would be prohibited from entering the worksite and would be placed on unpaid leave until a decision was made about whether they would be terminated or not.

Confidentiality and Disclosure Under the Policy

According to the vaccine policy, the employer would take all steps necessary to protect the confidentiality of all information submitted due to the policy. It did not require that employees provide any other medical information in addition to their vaccination status. Employee vaccination status could be shared where required or permitted by law, for instance, to governmental or regulatory authorities. Internally, the information would only be shared on a “need to know” basis.

The Union’s Position

In challenging the vaccine policy, the Union asserted that the policy was an unreasonable exercise of management rights by forcing employees to disclose personal health information. Further. the Union argued it is unreasonable to place unvaccinated employees on unpaid leaves of absence or to otherwise discipline them for a failure to become vaccination. On the issue of privacy, the Union argued the policy infringed employees’ rights to keep their confidential medical information private, which they believed to be a breach of the Personal Health Information Protection Act, 2004. Additionally, in their view, there was no reason to believe that the potentially small number of unvaccinated employees could not be accommodated. For these reason, the Union requested that their employees not be required to disclose their vaccine status, that mandatory testing be introduced as an alternative option to mandatory vaccination, and that discipline such as unpaid leave or termination not be permitted under the vaccine policy.

Arbitrator’s Decision

Arbitrator Herman began with the following comment on COVID-19:

“The continued presence of COVID-19 presents a serious risk and danger to the health and welfare of the public, to the economy and the education system, and to everyone’s ability to fully enjoy life. Public health and safety measures have not as yet been able to fully control the spread of the virus or its potentially terrible ramifications, and while data about the recently discovered Omicron variant remains limited at this point, the emergence of Omicron may increase the challenges COVID-19 presents for us all.”

It is clear from the beginning that the arbitrator considered the COVID-19 pandemic to be a matter of great important and seriousness.

Ultimately, the arbitrator believed the requirement to disclose vaccination status was reasonable. He based this conclusion on a number of reasons:

  • 1)  It was not clear that the Personal Health Information Protection Act, 2004 would have prevented the disclosure of an employee’s vaccination status;
  • 2)  Management is generally permitted to establish rules that require the production of employees’ medical information if necessary to protect the health and welfare of other employees;
  • 3)  The intrusion upon an employee’s privacy with respect to the disclosure of personal health information is fairly minimal due to the policy’s terms, which requires only that employees disclose their vaccination status and no other personal health information;
  • 4)  Employees are given a reasonable period of time to attest to their status; and
  • 5)  The arbitrator would ultimately find the vaccine policy as a whole to be reasonable, and therefore it would inevitably become obvious who was and who was not vaccinated in any event by their mere presence or absence from the worksite.

In summary, Arbitrator Herman stated:

“Any privacy rights in this context are considerably outweighed by the minimal intrusion on such rights and the enormous public health and safety interests at issue. In the result, I am satisfied that the attestation requirement in the Vaccine Policy is reasonable.”

Arbitrator Herman’s decision in this case should not be considered the final word on the issue of COVID-19 vaccine policies. As we have seen, some arbitrators have found certain vaccine policies to be unreasonable. Note, however, that Arbitrator Herman found reason to distinguish the current case from earlier decisions which found vaccine policies unreasonable. The ultimate answer to each challenge of a vaccine policy will likely vary on the facts of each particular case.

“Saving Clause” Does Not Save Illegal Contract

by Stacey R. Ball| | Employment Law| | General

A recent decision of the Ontario Superior Court, Campbell-Givons v. Humber River Hospital, like many others over the past year, involved an employee who had been fired pursuant to a “just cause” termination provision. As we have seen, employment contracts that allow for the termination of employees for “just cause” have frequently been found unenforceable (although not always) for violating the Employment Standards Act, which requires a higher standard of misconduct on behalf of an employee than the “just cause” standard implies.

Notably, this case considers the effect of a saving clause on the enforceability of “just cause” termination provisions, and provides further comment on whether or not courts should consider the sophistication of the parties in determining if an otherwise invalid termination provision should be enforced nonetheless.

Basic Facts

The employee in this case was 61 years old at the time of her termination. She worked as a Senior Labour Relations Specialist at a Toronto public hospital – a position she held for only 19 months. Upon termination, the employer paid the employee three weeks’ pay in lieu of notice, which was all they owed under the employment contract. However, there was one major problem for the employer: the termination provision they relied on addressed both termination “for cause” and termination “without cause.”

“Just Cause” Termination Provision

In the employee’s view, the “for cause” portion of the termination provision violated the Employment Standards Act. The case law is clear that the circumstances in which employers are able to terminate employees without notice under the ESA are much narrower than the common law standard of just cause would permit. Under the common law standard, a wide range of employee misconduct may disentitle them from reasonable notice under common law, but the same conduct would not be sufficient to deprive them of their entitlements under the ESA. That is essentially what makes “just cause” termination provisions contrary to law.

The Ontario Court of Appeal has also held that where termination provisions are found to be illegal, for example because they permit summary dismissal for “just cause”, such an illegal provision cannot be excised from the overall termination clause. For that reason, if the “with cause” provision is illegal, so is the “without cause” provision. In effect, the entire termination clause becomes unenforceable.

Ultimately, the Court found that the employee was right: the termination provision did indeed violate the ESA.

The “Saving” Provision?

In this case, the employer attempted to save their termination clause from being found unenforceable by pointing to the following language contained within:

“At all times the Employee will receive all employment standards entitlements owing to her in accordance with the Ontario Employment Standards Act, 2000.”

In the employer’s view, the above represented a “guarantee” in the termination clause that the employee would always and inevitably receive their ESA entitlements. Therefore, even if the termination provision violated the ESA when viewed in isolation, the employee would not be prejudiced because of this guarantee.

The Court was not persuaded. In their view, saving clauses such as this present a worrisome danger: that employers may draft termination provisions they know to be unenforceable, expecting that dismissed employees will accept them as so, and then protecting themselves with a saving clause in the event an employee actually challenges the termination provision. Courts do not want to allow employers to mislead employees, and that appears to be the practical effect of saving clauses. Ultimately, the Court found the termination provision unenforceable, and held that the “saving” clause had no effect on that determination.

Employee Sophistication

Recent jurisprudence has considered whether or not the sophistication of employees should be taken into account when determining the enforceability of termination provisions. We have discussed this in an earlier blog post. On this point, the Court here commented:

“It is also problematic, in my opinion, to engage in a detailed analysis about the level of sophistication of an employee and whether or not they had time and opportunity to obtain legal advice. A termination clause cannot comply with the ESA for some employees but violate the ESA for others. It either violates the ESA or does not, and is either enforceable or not. It is a straightforward matter for an employer to incorporate clauses in an employment agreement that comply with ESA standards, and when that is not done the court should not be asked to rewrite the language of the termination provisions to achieve compliance.”

Given the current jurisprudential disagreement currently existing on this point, it will be interesting to see how the courts determine this issue moving forward.