Vaccine related decisions continue to be made as we move closer to the halfway point of 2022. We have discussed a number of these decisions in earlier blog posts: see here, here, here, and here, to name a few. Today we write about a decision made on April 4, 2022, concerning the vaccination status of a healthcare worker at the Fraser Health Authority (FHA), one of five publicly funded healthcare regions of British Columbia.
The employee in this case was Ms. Capozzi. She had been working as a substance abuse counsellor at FHA since February 2014 and had a discipline-free record. However, Ms. Capozzi was unvaccinated, and she had “absolutely” no intention of ever becoming vaccinated. It was her view that the vaccination requirement was “unlawful”. This was unacceptable to FHA. The Provincial Health Officer of BC announced on September 13, 2021, that all health authority employees must obtain their vaccinations to be eligible to work. According to this order, Ms. Capozzi was ineligible to work because of her refusal to be vaccinated.
Ms. Capozzi was terminated on November 25, 2021. In her Union’s view, there was no just and reasonable cause for terminating Ms. Capozzi as reasonable alternatives, such as an unpaid leave of absence, was available. On the other hand, FHA argued Ms. Capozzi was terminated for just cause for dismissal due to her inability to work in compliance with the mandatory vaccination order.
The Arbitrator’s Decision: The COVID-19 Pandemic
Before turning her mind to the merits of Ms. Capozzi’s termination, Arbitrator Koml Kandola had this to say generally about the COVID-19 pandemic:
“For over two years, the COVID-19 pandemic has been an unprecedented health emergency here and across the globe. As a communicable disease, it has had far-reaching impacts, including serious health consequences up to and including death. It has taken a major toll on our health care system and staff.”
Clearly, Arbitrator Kandola regarded the COVID-19 pandemic as a very serious health emergency. Such a view obviously does not bode well for an employee wishing to remain unvaccinated. Arbitrator Kandola is not alone in this view. Other arbitrators, such as Arbitrator John Stout in his decision in Electrical Safety Authority (as discussed in this blog post), have also taken the view that COVID-19 is a serious problem and that vaccines are a necessary means of addressing it. This understanding and perception of the COVID-19 pandemic formed the backdrop of the Arbitrator’s decision.
The Arbitrator’s Decision: Just and Reasonable Cause
Arbitrator Kandola was very clear in her reasons that the present grievance concerning Ms. Capozzi’s termination had nothing to do with the validity of the employer’s mandatory vaccine policy, nor the reasonableness of the policy implemented by the Provincial Health Officer of BC. Rather, Arbitrator Kandola stated this case was about whether FHA had just and reasonable cause to terminate Ms. Capozzi in the context of the provincial policy. There is no dispute the policy applied to Ms. Capozzi, as it applied to all health sector employees in the province. Under that policy, Ms. Capozzi is undoubtedly ineligible to work.
FHA repeatedly advised Ms. Capozzi of the requirement that she be vaccinated. FHA encouraged her on a number of occasions to obtain her vaccination and provided her multiple opportunities to do so. FHA provided Ms. Capozzi with express notice of the consequences of her failure to be vaccinated. In spite of all this, Ms. Capozzi remained unvaccinated and intended to remain unvaccinated in the future. In choosing to remain unvaccinated, Ms. Capozzi intentionally rendered herself unable to work.
Due to Ms. Capozzi’s own decisions, Arbitrator Kandola found there was “no path forward” in terms of continued employment. In her view, FHA had compelling reasons for terminated Ms. Capozzi’s employment, and she believed no lesser alternative was reasonably available.
In these circumstances, the termination was just and reasonable. Ms. Capozzi’s grievance was therefore dismissed.