(416) 921 7997 Ext.225
GET A CONSULTATION

Month: October 2022

Three-Dose Vaccination Policy is Reasonable According to Arbitrator

by Stacey R. Ball| | General

According to our wrongful dismissal lawyer in Toronto, there is a growing list of decisions in the labour context that support an employer’s decision to mandate COVID-19 vaccination. Recently, another arbitrator has ruled in the employer’s favour with regard to vaccine policies.  However, this time there is an added wrinkle. In Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), an arbitrator ruled that a mandatory three-dose vaccination policy was reasonable.

The Regional Municipality of York (the “Employer” or “York Region”) is in charge of the operation of two long-term care homes (“LTC Homes”). CUPE, Local 905 (“the Union”) represented the LTC Home employees.

COVID-19 has had a significant impact on long-term care homes throughout Ontario, Canada and the rest of the world. Not only because it is a congregate setting (where spread of COVID-19 is more likely) but also because older individuals and those with underlying health conditions are much more susceptible to serious disease, and death, as a consequence of contracting the virus. In the agreed statement of facts, it was acknowledged that the consensus among experts is that vaccination is the best way of keeping people safe from infection and that a third shot substantially improves the immune response to prevent infection and severe disease.

Originally, York Region had only mandated a two-dose policy for their LTC Home workers. However, when the newer variant (Omicron) began to spread in late 2021, it was decided based on scientific evidence that a booster dose was important to restoring effectiveness. Therefore, the Employer sent out a memo to all staff advising of a new policy, making three doses mandatory by January 28, 2022. In June of 2022, the Union filed a grievance against this policy.

Discussion:

The Arbitrator had to determine whether the Employer was permitted to unilaterally impose a vaccination policy in the workplace. The Arbitrator applied the KVP test to come to a decision. He dealt specifically with these three issues:

  • Is the policy inconsistent with the collective agreement?
  • Is the policy reasonable?
  • Failure to consult the Union on the policy.

The Arbitrator agreed with York Region and found that the policy was consistent with the collective agreement. Article 11.1 of the agreement sets out principles such as the Employer being committed to protecting its employees from occupational disease, promoting a safe and healthy work environment, and employees must protect their own health and safety by complying with laws, safe work practices and procedures that are established. In reading the collective agreement, one might conclude that it actually puts an obligation on the Employer to take precautions for employee health and safety by imposing a vaccination policy.

Previously, a Provincial Directive required employers to have a three-dose vaccine mandate, which was then revoked in March of 2022. The Union argued that this fact alone made the York Region policy unreasonable. However, the Arbitrator stated that the absence of a Directive from the province on making it mandatory does not make it unreasonable. He cited that even though the Directive was no longer effective, advisory bodies in Ontario were still seriously advocating for workers in LTC Homes to be vaccinated. The Arbitrator felt the Employer had to create a mandatory vaccination policy because of the principles in the collective agreement, and scientific evidence from the Ontario Science Table.

As for the lack of consultation with the Union before announcing the policy, the Arbitrator held that he had no power to censure York Region for this, because the policy did not violate the collective agreement. Only if a provision was violated, could the Arbitrator rule in the Union’s favour on the subject of consultation.

Lesson Learned from the Decision:

For the most part, arbitrators continue to accept mandatory vaccination as being a reasonable policy. Moreover, some unions may have an even more difficult task arguing against such policies if their workforce is working in congregate settings or in places with a vulnerable population, as was the case here. Employers and unions should continue to monitor vaccination policy decisions in the coming months.

Illegal Termination Clauses and Fixed Contracts

by Stacey R. Ball| | Employment Contracts

Almost all employment contracts include a termination clause. Yet, not all termination clauses are enforceable. The consequences of this can be severe for an employer. This is well exemplified in the 2022 Ontario Superior Court decision, Tarras v. The Municipal Infrastructure Group Ltd.

Background:

In late 2019, Plaintiff, Mark Andrew Tarras, agreed to a three-year, fixed-term employment contract with Defendant, The Municipal Infrastructure Group Limited (“TMIG”), which made him a Vice-President. In November of 2020, Mr. Tarras was dismissed without cause, effective December 31st, 2020. This meant his salary and benefits were terminated as of December 31. The focus of this case was the provisions in his termination clause, as well as the question of a fixed-term contract.

The Termination Clause:

In Ontario, the Employment Standards Act (“ESA”) sets out minimum standards that an employer must meet. The employer and employee cannot contract out of these standards, even if they’ve agreed to do so. Any provision that contracts out the minimums set out in the ESA is simply void.

The Ontario Regulation that was enacted pursuant to the ESA provides in two different sections that there is no entitlement to notice of termination or severance pay for an “employee who has been guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer.”

The ESA standard is considered to be a higher bar for termination for cause than the common law meaning of cause. The wording used in the termination clause in this decision, does not meet to the standard required by the ESA. Ontario courts have repeatedly found that if a specific provision does not meet the legislated minimums, it will render the entire termination clause void. Therefore, even though the Mr. Tarras was dismissed without cause, the legality of the entire termination clause is called into question due to the illegal termination ‘for cause’ provision.

The sophistication level of the parties also does not matter when it comes to the requirement of meeting minimum standards. In this case, both parties co-authored the drafting of the agreement, and the plaintiff had legal counsel throughout. However, having a good understanding of the law does not allow one to contract out of minimum employment law standards. Even though both parties drafted the agreement together, their language did not meet the ESA standard of ‘cause’ which requires wilful misconduct.

Thus, the termination clause is unenforceable due to the ‘cause’ provision falling short of the minimum standards set out in the ESA. It did not matter that the parties co-authored the agreement, nor did it matter that the Plaintiff had legal counsel. The parties may have met the common law standard, but they did not meet the ESA requirement.

Fixed-Contract and Illegal Termination Clauses:

Once it was established that the termination clause was unenforceable, the court had to determine what the appropriate notice period was. To do so, there had to be a decision on whether this employment agreement was a fixed-term contract or not. The agreement in this case provided for “a term of three (3) years” with an end date of December 2, 2022. Thus, the court decided it was an unambiguous, fixed-term agreement.

If there is an unenforceable termination clause in a fixed-term employment contract, the employee will be awarded damages at common law. In 2016, the Court of Appeal found that:

In the absence of an enforceable contractual provision stipulating a fixed term of notice, or any other provision to the contrary, a fixed term employment contract obligates an employer to pay an employee to the end of the term, and that obligation will not be subject to mitigation.

As the Court of Appeal also pointed out, the entitlements to the employee are not subject to mitigation. Dismisses employees have no duty to mitigate if they are terminated from a fixed-term contract.

Takeaway:

In summary, Mr. Tarras was dismissed without cause, but because the ‘cause’ provision only met the common law standard, not the ESA standard; it rendered the entire termination clause unenforceable. Therefore, the Plaintiff was entitled to common law notice, which in the case of a fixed-term agreement, is the remainder of the contract. Ultimately, Mr. Tarras was awarded the balance of his deal – 23 months’ salary – which amounted to $479,166.67.