GSB# 2021-2596

UNION# 2021-0108-0496

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wilson)

Union

• and -

The Crown in Right of Ontario (The Ministry of the Solicitor General)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

David Wright Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING SUBMISSIONS

April 17, 2023 May 31, 2023

Decision

1This award addresses three grievances of the Grievor: a grievance dated December 16, 2021 pertaining to a 20-day disciplinary suspension; a grievance dated February 1, 2022 pertaining to his denied use of Short Term Sickness Plan (“STSP”) credits; and a grievance dated May 3, 2022 pertaining to the termination of his employment.

2In response to the COVID-19 global pandemic, the Employer introduced a Safe Workplace Directive (“Directive”) on October 1, 2021. The Directive applied to the entire Ontario Public Service (“OPS”). The Directive ceased to apply on April 4, 2022, however, employees working in congregate care settings became subject to the Safe Workplace Policy (“Policy”) as of that date. The Grievor was employed as a correctional officer and as such was subject to the Policy.

3The 20-day suspension and the termination of the Grievor’s employment derive from his refusal to comply with testing requirements contained in the Directive, which were retained by the Policy. In both instances, the Employer considered the Grievor’s refusal to be insubordination. The Grievor was, and is, of the view that the testing requirements are unscientific and unlawful. The Union, which has carriage rights of the grievances, does not share this view. Indeed, the Union states it does not challenge the reasonableness of the Directive or the Policy. However, the Union argues that in the unique circumstances of this case the Grievor’s refusals to comply with the testing requirements did not constitute insubordination justifying discipline. In the alternative, if discipline was warranted, dismissal was not the appropriate outcome. Rather, the Union argues, the Employer should have placed the Grievor on an unpaid leave of absence until such time as the testing requirement was no longer in effect or the Grievor chose to comply.

4The grievance with respect to being denied the use of his STSP credits arises within the same factual matrix. Immediately after the completion of his 20-day suspension, the Grievor advised the Employer that he was booking off sick. The Employer required the Grievor to provide a medical note and he complied. The Employer’s position is that the medical note provided was insufficient and that the Grievor’s request to use his STSP credits was properly denied.

5The parties agreed to proceed on the basis of the following Agreed Statement of Fact:

Chronology of Events Leading up to Termination

1. Charles Wilson (“Grievor”) was a Correctional Officer at Elgin Middlesex Detention Centre [“EMDC”].

2. His employment was terminated, per the letter attached as Appendix A .

3. The issue of whether or not the Employer had just cause to terminate the Grievor, and thus whether or not the Grievor should be reinstated to employment is challenged by grievance.

4. In response to the COVID-19 global pandemic, the Employer introduced the Safe Workplace Directive, which took effect on October 1, 2021 (attached as Appendix B – “Directive”).

5. Pursuant to the Directive, all employees were required to either attest that they are vaccinated or take an education course and undertake a rapid test prior to entering the workplace.

6. The Grievor was notified on October 25, 2021, that he was considered not vaccinated under the Directive and was advised of the requirements to complete the rapid antigen testing and provide proof of a negative test prior to entering the workplace. The Grievor worked on October 29, 30, 31, and November 1 after receiving the email direction.

7. On November 2, 3 and 4, 2021, respectively, the Staff Services Manager reached out to the Grievor via telephone message (as he was not scheduled to work) to advise him not to attend the institution as he needed [to] complete the rapid antigen testing.

8. On November 9, 2021, the Staff Services Manager contacted the employee again (via telephone message) and instructed the employee to contact him on November 10, 2021, to arrange a time to pick up the rapid antigen test kits.

9. On November 9, 2021, the employee entered EMDC without completing the rapid antigen testing and/or submitting proof of the negative results. The Staff Services Manager, who was not working at this time, spoke to the Grievor on the phone and advised him to vacate the institution due to not adhering to the Directive.

10. Also on November 9, 2021, the Grievor was offered a rapid test kit, but the Grievor declined to take it. Occurrence Reports were completed and are attached as Appendix C and D respectively.

11. The Grievor was placed on an unpaid and unauthorized leave effective November 9, 2021.

12. The Grievor sent a “Notice of Liability” to the Staff Services Manager and also indicated that he would be pursuing criminal charges against the Staff Services Manager. The letter is attached as Appendix E.

13. An allegation meeting was scheduled for November 23, 2021, at 10am via Microsoft Teams.

14. Following this meeting, the Grievor was issued a 20-day suspension from December 16, 2021 to January 15, 2022. The Disciplinary Suspension Letter is attached as Appendix F; and the Return to Work Expectations Letter is attached as Appendix G.

15. The Grievor picked up rapid antigen tests from the institution on January 11, 2022.

16. The Grievor was expected to return to the workplace following the 20-day suspension for non-compliance on January 15, 2022.

17. The Grievor telephoned EMDC on each of January 15 and 16, 2022 and advised Sgt. Parr that he was booking off sick. On January 17, 2022, the Grievor was contacted by Sgt. Parr and advised that he was required to obtain a medical note respecting his sick leave and to deliver that to EMDC by January 24, 2022.

18. On January 19, 2022 the Grievor obtained a note from his doctor, a copy of which is attached as Appendix G1. He called EMDC that afternoon and spoke with Sgt. Hamsic and advised Sgt. Hamsic that he had obtained a doctor`s note placing him on sick leave until January 30, 2022.

19. On January 22, 2022, the Grievor attended EMDC and hand delivered the medical note.

20. The Grievor’s position is that he was medically unable to work from January 15, 2022, to February 1, 2022, and is therefore entitled to STSP for these days. The Employer’s position is that he was not eligible for STSP during this period. The parties agree that no accommodation was sought for this period.

21. The Employer’s position is that the medical note was insufficient for the use of STSP credits. The Employer provided the Grievor with a medical questionnaire for his doctor to complete by February 10, 2022. The Grievor did not return the medical questionnaire to the Employer, and the Employer takes the position that his STSP was properly denied.

22. On February 2, 2022, the Grievor called into EMDC and asked if there were any shifts available for that night. He was advised that he was scheduled to work. The Grievor asked if he was still required to test if he was unvaccinated. He was advised that if he was not fully vaccinated then he would need to complete the rapid antigen test and submit the negative result prior to coming to work. The Grievor stated, “I guess I won’t be coming in, because I won’t test”.

23. The Grievor did not attend his shift on February 3, 2022.

24. The Employer scheduled an allegation meeting for February 9, 2022. The Grievor did not attend the meeting. He was subsequently provided the opportunity to respond to the allegations in writing, and he did so through the document attached as Appendix H.

25. The Employer terminated the Grievor’s employment by letter dated May 2, 2022 (Appendix A).

Post-Termination Developments

26. The Directive ceased to apply on or about April 4, 2022. Effective April 4, 2022, the Safe Workplace Policy began to apply to all employees working in congregant [sic] care settings, including Correctional Officers. The Safe Workplace Policy requires employees such as the Grievor to complete rapid antigen testing, regardless of vaccination status, at certain intervals prior to entering the workplace.

27. The Safe Workplace Policy continues to apply and is attached as Appendix I. The Info share to OPSEU regarding the Safe Workplace Policy is attached as Appendix J.

Grievances

28. The Grievor has filed three grievances dated December 16, 2021 pertaining to his 20-day disciplinary suspension; February 1, 2022 pertaining to his denied use of STSP credits; and May 3, 2022 pertaining to his termination. These are attached as Appendices K, L, and M respectively.

Union’s Position

29. The Union is not challenging the reasonableness of the Directive or the Safe Workplace Policy.

30. The Union’s position is that the Grievor’s employment should not have been terminated. Rather, he should have been placed on an authorized Leave Without Pay (“LWOP”) pending the removal of the current policy.

31. If called to give evidence the Grievor would testify to his belief that the Directive and the Safe Workplace Policy are based on incorrect science.

Employer’s Position

32. The Employer maintains that it had cause to terminate the Grievor’s employment and does not agree that the Grievor should have been placed on a LWOP. Placing full-time permanent employees on LWOP has costs to the Employer which include the payment of pension and benefit premiums for the first calendar month of the leave and the recruitment costs incurred to backfill the employee on leave. Further, employees on LWOP may, in certain circumstances, be entitled to LTIP.

33. If required, the Employer would submit evidence that the Directive and the Safe Workplace Policy were developed with consultation from the Ministry of Health, the Chief Medical Officer of Health, and leading scientific experts in Ontario, and that the Employer was at all times and remains compliant with the “Instructions issued by the Office of the Chief Medical Officer of Health” as attached at Appendix N and Appendix O and with the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17.

[Appendices omitted.]

6The parties also agreed that statements of fact, as distinct from opinions or conclusions, contained in the documents appended to the Agreed Statement of Fact and certain other documents which they filed were to be considered as in evidence for the truth of their contents.

7The oral hearing of this matter took place on April 17, 2023. On May 1, 2023, the testing requirement was lifted. In particular, a memorandum from the Employer to all staff in Institutional Services (Ministry of the Solicitor General) dated April 28, 2023, indicated Correctional Officers were not required to undertake rapid antigen testing effective May 1, 2023. Compliance with other Infection Prevention and Control (IPAC) measures remained in effect. The memo stated, “[s]hould public health officials determine the need to reimplement COVID-19 testing requirements in the future, the Employer may change the frequency under the Policy to align with public health recommendations.” This memo was preceded by an “info share” on April 27, 2023. The info share indicated that the Safe Workplace Policy remains in effect, albeit with the testing requirement no longer required. The info share further indicated that this may change going forward in order “to align with public health recommendations.”

8The parties were invited to make post hearing written submissions about the effect, if any, of the fact that the testing requirement no longer applies. At the same time the parties were invited to make post hearing written submissions with respect to an April 26, 2023 decision of Arbitrator Herman which appeared to be relevant to the issues at hand: Lakeridge Health v CUPE, Local 6364, 2023 CanLII 33942 (ON LA). Both parties did so.

9Finally, it is worth noting that both the Directive and the Policy contain “medical exemptions” and make reference to the Ontario Human Rights Code. There is, however, no suggestion that medical exemptions or the Ontario Human Rights Code are engaged in this case.

Argument for the Employer

10The Employer notes that the Directive was enacted in response to the COVID pandemic on the direction of the Chief Medical Officer of Health and that the Employer was at all times compliant with instructions issued by the Office of the Chief Medical Officer of Health. The Directive was minimally intrusive and reasonable. It required employees either to be vaccinated or undertake rapid testing. The Grievor was disciplined and ultimately terminated for refusal to comply with the Directive. By the date his employment was terminated, the Directive have been effectively lifted, but had been replaced by the Policy. The Policy applied to employees who worked in congregate settings. This included correctional officers, such as the Grievor, who work in correctional facilities. Employees to whom the Policy applied were required to take rapid tests at regular intervals, whether or not they were vaccinated. Since the Grievor refused to undertake rapid testing, he would not have been in compliance with the Policy either.

11Both the Directive and the Policy clearly state that non-compliance may result in discipline up to and including dismissal. The Directive came into effect on October 1, 2021. On October 25, 2021, the Grievor was specifically notified that he was considered to be not vaccinated and accordingly was required to complete testing and submit proof of a negative result before entering the workplace. He was advised of this requirement repeatedly over the next weeks. He not only refused to take a test but entered the workplace without having taken a test. He was placed on a leave of absence without pay on November 9, 2021. An allegation meeting was held on November 23, 2021. On December 16, 2021, the 20 day suspension letter was issued which specifically referenced the possibility of termination for continued non-compliance. On December 17, 2021, a letter of expectations was also issued to the Grievor which reiterated the testing requirement and the possibility of termination for non-compliance. It could not have come as a surprise to the Grievor when his employment was terminated on May 2, 2022 for continued non-compliance.

12The only issue is whether termination was reasonable.

13The core role of a correctional officer is the care and custody of inmates. Inmates are totally reliant upon correctional officers for the necessities of life, for example food and medication. They are an inherently vulnerable population. A key purpose of the testing requirement of the Directive and Policy was to protect this population. Accordingly, insubordination in relation to that requirement goes to the core of what the Grievor was employed to do. The Employer cannot trust a correctional officer who thinks she or he can pick and choose which policies to follow and which to disregard. This concern is magnified when dealing with policies, such as this, which go to the core of the duties of a correctional officer.

14The policy was reasonable. The Union does not suggest otherwise.

15The Grievor was given ample warnings. He was given full opportunity to respond prior to the suspension and ultimately his discharge. It was clear from his responses that he had no intention of ever complying with the testing requirement.

16The Employer rejects the Union’s anticipated argument that the appropriate response would have been to place the Grievor on leave without pay until the testing requirement in the Policy was revoked. That would mean that if an employee did not like a policy, the employee does not have to follow it but can simply choose to stay at home until it is revoked. Employees do not get to choose which policies to follow and do not get to choose when to come to work. The alternative is unworkable. It is also contrary to the public interest. If employees refuse to follow reasonable policies, then they cannot work and are subject to being fired.

17The Employer notes that section 42 of the Public Service of Ontario Act, 2006, allows the Employer to declare an employee to have abandoned his or her employment if he or she is absent for more than 10 consecutive working days without leave. While this is not an abandonment case, the Employer relies on section 42 as establishing a yardstick for what constitutes a reasonable period of absence before the employment can be terminated for cause. As of the date of the hearing, the Grievor had been absent for over 10 months.

18The Employer notes that the collective agreement and the Employment Standards Act, 2000 afford rights to a leave of absence only within specific circumstances. The Grievor does not fall within any of those circumstances. Accordingly, it was the Employer’s discretion as to whether or not to grant a leave. The Employer also notes that while Article 24(b)(i) of the collective agreement permits an employee to request a discretionary leave, the Grievor never did so.

19The Employer also notes that even when a leave of absence is without pay, there are other associated costs to the Employer, some more easily quantifiable than others. In the short term, there is the cost of overtime paid to other employees to back fill the position. The Employer must recruit and train someone to replace the employee absent on the leave. This is more difficult and costly in relation to temporary absences. Further, if the person on leave is gone long enough, the status of the replacement employee will be rolled over from temporary to permanent pursuant to the terms of the collective agreement. At the same time, the absent employee’s benefits are continued until the end of the month in which the leave commences. Accordingly, the Employer is paying the cost of benefits for an individual who is no longer working. While not applicable to front line service workers, and thus the Grievor’s case, the Employer also notes that at present there is a hiring freeze in the Ontario Public Service, with the result that if someone goes off on a leave, it cannot fill another full time equivalent vacancy.

20With respect to the Union’s anticipated argument that the Grievor’s refusal to test was permitted on the basis that an honestly held belief as to safety is a recognized exception to the grieve now / obey later rule, the Employer notes such a belief must also be objectively reasonable. There is no objective basis on which the act of “swabbing one’s nose with a Q-tip”, as required by the rapid tests, can be considered to pose a safety risk. The fact the Grievor may have subjectively believed that it did is not sufficient.

21The Employer then turns to the grievance alleging improper denial of STSP benefits to the Grievor. The Employer argues the denial must be assessed in context. The Grievor had just been off on suspension for 20 days for refusing to test. The medical certificate which he provided was very oddly framed. It was accordingly reasonable for the Employer to request further medical information and it did so. The Grievor did not provide further medical information, and indeed has not to date. In the result, the Employer quite properly denied the Grievor’s claim for STSP benefits. Even if the Grievor had been sick during the period for which he claimed benefits, he could not have come to work because he was not going to agree to be tested. It makes no sense that he should get paid STSP benefits for a period in which he would not otherwise have been at work.

22The Employer makes reference to the following cases: British Columbia General Employees’ Union (Capozzi) v. Fraser Health Authority, 2022 CanLII 25560 (BC LA) (Kandola); Croke v. VuPoint Systems Ltd., 2023 ONSC 1234; The Power Workers Union v. Ontario Power Generation, Unreported, November 12, 2021(Murray); Jamieson Laboratories Limited v. Unifor Local 195 (Meleg), 2022 CarswellOnt 18280, 2022 CLAS 633 (Crljenica); Poulos v. Treasury Board, 2022 CarsewllNB 187, 2022 CLAS 387 (Filliter, Adjud.); Christian Labour Association of Canada v. Revera Inc. (Brierwood Gardens et al.), 2022 CanLII 28657 (ON LA) (White); Canadian Labour Arbitration, 5th Edition, Brown & Beatty, Chapter 7. Discipline, IV. Grounds for Discipline, F. Insubordination, 2. Exceptions, s. 7.43 Health and Safety; Whitfield v. York University Faculty Association, 2017 CarswellOnt 3970 (OLRB); Brewers’ Distributors Ltd. v. Brewery, Winery & Distillery Workers’ Union, Local 300, 2003 CanLII 89498 (BC LA), 2003 CarswellBC 3409, [2003] BCCAAA No. 176, 121 LAC (4th) 228, 75 CLAS 65 (Blasina); Ontario Public Service Employees Union (Fitzgerald et al) v. Ontario (Ministry of Solicitor General), 2020 CanLII 39020 (ON GSB) (Wacyk); Ontario Public Service Employees Union (Union) v. Ontario (Ministry of Solicitor General), 2022 CanLII 106485 (ON GSB) (McLean); Harjee v. Ontario, 2022 ONSC 7033; Ellisdon Construction Ltd. v. Labourers’ International Union of North America, Local 183 (Rapid Testing Grievance), 2021 CanLII 50159 (ON LA) (Kitchen).

Argument for the Union

23The Union does not challenge the reasonableness of either the Directive or the Policy. Rather it challenges the Employer’s application of them to the Grievor. The Employer decided to exercise its management rights to dismiss the Grievor. The Union states that was neither justified nor reasonable. The Grievor was not insubordinate and dismissal was not appropriate. Rather, the Employer should have placed the Grievor on an unpaid leave of absence until such time as the Policy was no longer in effect or the Grievor decided to comply.

24The Union notes that the Employer did not rely on frustration of contract in terminating the Grievor’s employment. Rather, the Employer relied upon insubordination as justifying termination for cause. The concept of frustration is thus not applicable to the case at hand.

25The principle alleged grounds of insubordination were failure to comply with policies and issues of safety. This is not a classic case of insubordination, relating to interactions with individuals. Further, while the Union accepts the weight of scientific authority establishes that vaccines and testing were a valid response to the pandemic, this view was not universally held. In particular, it is not a view held by the Grievor. Rather, the Grievor has a profound, honestly held belief that vaccines and testing are not appropriate.

26The Union accepts that in the ordinary course, an employee is required to comply with a rule or direction with which the employee does not agree and grieve later. There are, however, exceptions to this “obey now/grieve later” rule and the Union relies upon the exception based on safety and the exception based on privacy.

27With respect to safety, the Union relies upon the same excerpt from Brown & Beatty as provided by the Employer. The Union acknowledges that the determination of whether the Grievor’s health and safety concerns were reasonable is an objective one. The Union argues, however, that in assessing the reasonableness of the Grievor’s concerns, sensitivity should be shown to the unprecedented environment at the time and the honesty and profundity of the Grievor’s beliefs.

28With respect to privacy, the Union argues that there can be no doubt that being compelled to insert something into one’s body constitutes an invasion of personal privacy. Reference is made to: Canadian Labour Arbitration, 5th Edition, Brown & Beatty, Chapter 7. Discipline, IV. Grounds for Discipline, F. Insubordination, 2. Exceptions, s. 7.47, Personal Privacy.

29Accordingly, the Grievor’s refusal to comply with the testing requirement is not insubordination. As a result, there was no cause for discipline. The Union does not suggest the Grievor should have been entitled to attend at the workplace. Rather the Union submits the appropriate response by the Employer would have been to place the Grievor on an unpaid leave of absence.

30Assuming there was cause for discipline, the Union argues there was not cause for dismissal. The Grievor has no prior history of insubordination and no prior history of refusing to follow the Employer’s rules. The Grievor only refused to follow this rule. The circumstances are unique. There is no basis for the suggestion that the Grievor would choose not to follow another policy. The Grievor does not pose a risk to the safety of his colleagues or the inmates if he is placed on an unpaid leave of absence until he complies with the rule or it is rescinded.

31There would be no actual harm to the Employer if the Grievor were placed on an unpaid leave. The Grievor’s skills are not unique. There are many correctional officers, including fixed term employees and casual employees, who could perform the work he was doing. There is no evidence of any extra expenses or actual recruitment problems, or any evidence of additional cost as a result of employees working overtime. Overtime is endemic in Corrections and there is no evidence that the Grievor’s situation added to that cost in any significant way. Any recruitment costs would have been incurred in November, 2021 when the Grievor was first placed on unpaid leave by the Employer. The argument that the Employer loses the benefit of premiums paid until the end of the month for an employee placed on unpaid leave is not compelling because the Employer could choose to have the leave commence at the end of the month.

32Reference was made to Canadian Union of Public Employees, Local 5167 (Policy) v. City of Hamilton, 2022 CanLII 112114 (ON LA) (Nyman); and Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (Policy) v. Chartwell Housing REIT, 2022 CanLII 6832 (Misra). Both cases dealt with challenges to COVID vaccination and testing policies, not their application, but they demonstrate great concern about treating termination as the consequence for non-compliance.

33The Union then turns to the grievance with respect to denial of STSP benefits for the period January 15 to January 30, 2022. The Grievor called in sick on January 15 and 16, 2022. On January 17, 2022, the Employer told him he was required to provide a medical certificate. Since this was before the Grievor had been absent for five days, the Employer is required to prove not only that it honestly suspected abuse but that there was a reasonable basis for that suspicion: Ontario Public Service Employees Union (Hernden/Larkin) v. Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 40176 (ON GSB), paras. 41 - 43 and 47 - 50. The Employer has not discharged that onus in this case. By the time the Employer made its second request for further medical information, the Grievor had effectively already been fired. It is not surprising that he did not respond. Therefore the Grievor’s claim for STSP benefits should be allowed.

Employer Reply

34The Employer argues that the Grievor’s refusal to follow the Directive was insubordination, ultimately justifying termination for cause. His refusal to follow the Directive also meant that the Grievor could not attend at work, resulting in frustration of his contract of employment with the Employer. Both are true independently of each other, but at the same time the reason the Grievor’s contract was frustrated was because he was insubordinate.

35The Employer argues the Union is effectively requesting a leave of absence on behalf of the Grievor. The Employer reiterates that the Grievor never made such a request himself. Had he made such a request it might have been denied and that denial might have been the subject of a separate grievance, but no such request was made and there is no such grievance before me.

36The Employer notes that it had not anticipated the Union’s privacy argument and thus had not yet made submissions on that issue. With respect to the Union’s argument that testing constitutes an impermissible intrusion upon the privacy interests of the Grievor, the Employer notes that those interests must be balanced against the legitimate interests of the Employer in enacting the Directive. The Directive gives expression to the Employer’s legitimate interest, if not obligation, in preventing the spread of COVID within the workplace. This objective outweighs the minimal intrusion on the privacy interests arising from the requirement to swab his nose in the privacy of his own home and report to the Employer whether the results were positive or negative. Reference is made to: EllisDon Construction Ltd. v. Labourers International Union of North America, Local 183 (Rapid Testing Grievance), 2021 CanLII 50159 (ON LA) (Kitchen). In any event, the testing requirement is one of several options provided by the Directive. Given the Union does not challenge the reasonableness of the Directive, it cannot challenge its testing requirement on the basis of privacy concerns.

Union Sur-Reply

37In sur-reply to the Employer’s arguments on privacy, the Union argues that it raises the privacy concern not in order to challenge the reasonableness of the policy, but rather to establish that the Grievor’s conduct fell within an exception to the obey now / grieve later rule.

Analysis and Decision

The Directive

38The relevant part of the Directive reads as follows:

5 Mandatory Requirements

All employees will be required to provide one of the following:

1. Proof they are fully vaccinated, meaning they have met the latest requirements as determined by the Chief Medical Officer of Health and 14 days have passed since receiving their final dose of the COVID-19 vaccine.

2. Written proof of a medical exemption, that sets out that the person cannot be fully vaccinated against COVID-19, and the effective time-period for the medical reason (i.e., permanent or time limited).

3. Proof that the employee has completed an educational program, approved by the OPS.

Employees who elect (1) not to provide proof of full vaccination status, or (2) who are not fully vaccinated, are considered not vaccinated under this directive. Beginning on a date to be determined by the Employer, employees who are not vaccinated are required to complete regular rapid antigen testing every 48 hours and provide proof of the negative test results prior to entering the physical workplace. A negative test result is valid for 48 hours from taking the test. After 48 hours have passed from the employee taking the test, the employee is required to retest prior to entering the physical workplace again. In higher risk congregate care settings, testing may be required more frequently at the Employer’s discretion.

6 Non-Compliance

Employees who do not fulfil the requirements as set out in this directive may be placed on an unauthorized, unpaid leave of absence and/or subject to disciplinary action, up to and including dismissal.

39The Grievor did not provide proof of full vaccination status or of a medical exemption. Therefore, he was required to complete the education program and subsequently comply with the testing requirement.

40Employees subject to the testing requirement were required to test and to provide proof of a negative result prior to entering the physical workplace. This is a dual requirement. To its credit, the Union did not suggest that an employee who declined to test, and therefore was unable to provide a negative test result, would be in full compliance with the Directive by not entering the workplace. The obligation to test is in furtherance of an employee’s most basic obligation: the obligation to report to work if it is safe to do so. It was not open to an employee to avoid that basic obligation by refusing to test.

The 20 Day Suspension

41By letter dated December 16, 2021, the Employer issued the Grievor a 20 day suspension for the following conduct:

On November 9, 2021, you refused to adhere to the requirements outlined in the Ontario Public Service (OPS) COVID-19 Safe Workplace Directive by failing to pick up your rapid antigen testing kit from the institution and did not provide me with confirmation of a negative rapid antigen test result 48 hours prior to you attending the workplace on November 9, 2021. Further, on November 9, 2021, you did not pass the self affirmation or active screening upon entering the institution.

Central to these allegations was the Grievor attending or attempting to attend at the workplace not only without having complied with the requirement to test contained in the Directive, but in direct challenge to that requirement.

42I turn to consider the evidence in relation to these allegations.

43On October 25, 2021, the Employer notified the Grievor by email that he was considered not vaccinated and was required to complete a rapid antigen test and provide proof of a negative result prior to entering the workplace. He did not comply. Rather, he worked on October 29, 30, 31 and November 1 after receiving that direction.

44On November 2, 3 and 4, 2021, the Staff Services Manager left telephone messages for the Grievor advising him not to attend the workplace as he had not completed the rapid antigen testing. Notwithstanding, on November 9, 2021, the Grievor entered the workplace without completing the test or submitting proof of negative results. When questioned on that date by two Staff Sergeants as to why he was there despite the repeated messages directing him not to attend, the Grievor stated he was on holidays and “not responding to work on his time off”. When told that the messages had notified him not to enter the building due to refusing to collect his test kit, he responded that “not one of the messages stated not to return to work”. I note that this statement indicates that while he may not have been “responding” to messages while he was on holidays, he clearly had listened to them. I also note that his statement that “not one of the messages stated not to return to work” is at odds with the agreed fact that the Staff Services Manager left him a message “to advise him not to attend the institution as he needed to complete the rapid antigen testing”. The Grievor maintained to the Staff Sergeants that he was ready to work, and stated that if he was being told he was not permitted to work then he wanted it in writing and if he was not being allowed in the building he wanted a written notice under the Trespass to Property Act. The Grievor also asserted that the Employer’s action in “keeping him from work was unconstitutional”. Leaving aside the assertion that it was unconstitutional, this statement demonstrates that he was aware that the employer was “keeping him from work”. I also note that it is an agreed fact that the Grievor was offered a rapid test but declined to take it.

45The Grievor subsequently sent a “Notice of Liability” dated November 15, 2021, to the Staff Services Manager. The Notice indicates its “source” is “action4canada.com". It contains blanks for the name of the recipient and the name of the person giving notice. The Grievor has written in the name of the Staff Services Manager as the recipient and his own name as the person giving notice.

46The Notice is four pages of arrant nonsense. It commences:

RE: Any COVID-19 testing forcibly required, mandated or administered to Canadian citizens, including children, by the government, appointed officials, employers, educators, and the like.

This is an official and personal Notice of Liability.

Your are unlawfully practicing medicine by prescribing, recommending, and/or using coercion to insist I submit to testing for COVID-19, such as but not limited to, PCR testing which includes rapid tests, blood tests, or any medical intervention to determine any communicable disease known through proof of a genome report.

[Emphasis in original.]

47It continues with, at best, questionable assertions of fact, followed by references to the “Nuremberg Code” (I note the quoted “Articles” do not appear in the Nuremberg Code adopted in 1947, which document is commonly referred to as the Nuremberg Code), the Crimes Against Humanity and War Crimes Act of Canada, the Criminal Code of Canada, the Genetic Non-Discrimination Act, the Quarantine Act and the Privacy Act. It concludes:

Therefore, I hereby notify you that I will hold you personally liable for any harm I may suffer, financial injury and/or loss of my personal income and my ability to provide food and shelter for myself or my family if you use coercion, force or discriminate against me based on my decision not to participate in COVID-testing of any kind not limited to rapid testing, internal swabbing or blood tests.

48The Notice of Liability sent by the Grievor on or about November 15, 2021 obviously post dates the November 9, 2021 events relied upon by the Employer as the basis for the discipline issued on December 15, 2021. It is, however, relevant in at least two respects. First, it speaks to the Grievor’s state of mind on November 9, 2021. The Notice and the Grievor’s statements to the Staff Sergeants on November 9, 2021 suggest the Grievor’s actions were not only intentional but taken in deliberate and provocative defiance of the Directive. Second, it speaks to the question of whether I should exercise my discretion as an arbitrator to substitute a lesser penalty. It militates heavily against doing so

49On the material before me, I find the Grievor was aware of the requirement that he perform a test and report a negative result before entering the workplace. I find that notwithstanding, the Grievor intentionally entered the workplace in contravention of those requirements. Further, I find that his actions in doing so were deliberately provocative. Accordingly, I find that the Employer has established the allegations upon which it relied in issuing the 20 day suspension. Further, I find there is no reason to substitute a lesser penalty. Accordingly, the grievance against the 20 day suspension is denied.

50I would add that for reasons given below, I am not persuaded that the Grievor’s refusal to test falls within either the safety or privacy exceptions to the obey now / grieve later rule. It is important to note, however, that those exceptions have no application to the reasons for the 20 day suspension. The Grievor was disciplined for failing to pick up a test kit and for attending at the workplace without testing. Those actions were in breach of the Directive whether or not the Grievor had valid reasons for refusing to test.

Claim for Short Term Sickness Plan Benefits

51The Grievor grieves that he was improperly denied STSP benefits he claimed for January 15, to 30, 2022. The Employer responds the Grievor was not entitled to the STSP benefits. (Indeed, as discussed below, the Employer alleges his claim was an attempt to abuse the STSP and relied on that allegation in terminating his employment.)

52The relevant articles in the collective agreement are as follows:

44.01 An employee who is unable to attend to their duties due to sickness or injury is entitled to leave of absence with pay as follows:

(a) with regular salary for the first six (6) working days of absence,

(b) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year.

44.10. After five (5) days’ absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to their official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.

53Article 44.01 provides entitlement to use of STSP credits when the employee is “unable to attend to their duties due to sickness or injury”. The onus of proving inability to attend to duties due to sickness or injury lies upon the employee. The first sentence of Article 44.10 relieves an employee of the obligation to provide a medical certificate certifying inability to attend to duties for the first five days of absence due to sickness. Notably this does not relieve the employee of the obligation to provide a medical certificate, if requested, for a period of absence which ends up being greater than five days of absence. Further, Article 44.10 continues that where abuse of sick leave is suspected, an employee’s manager may require an employee to provide a medical certificate for a period of less than five days. I accept, as argued by the Union, that it is well established jurisprudence of this Board that the suspicion must be not only honestly held, but reasonable: see Hernden/Larkin.

54In this case, the evidence before me with respect to the Employer’s reasons for requesting a medical certificate on January 17, 2022 and, once the medical certificate of January 19, 2022 was provided, subsequently requesting further medical information is essentially captured in the following undisputed statements in the February 4, 2022 letter from the Staff Services Manager to the Grievor¹:

Following your 20-day suspension, you were expected to return to the workplace on January 15, 2022; however, you called in sick on this date as well as on January 16, 2022. As the Employer questioned the validity of your absence given your refusal to participate in rapid antigen testing, you were asked to provide additional information or medical documentation to support your absence from the workplace.

On January 17, 2022, you sent the Employer a series of questions and concerns related to the OPS COVID-19 Safe Workplace Directive and requested a response from the Employer prior to your scheduled shift on January 19, 2022. A thorough response was sent to you on January 18, 2022, as requested, in advance of your shift.

On January 19, 2022, you called in sick for your shift and indicated that you had a medical note placing you off work until January 30, 2022. As the Employer continued to question the validity of your absence the medical note for this absence was deemed insufficient to support your use of STSP credits as it did not indicate any restrictions or limitation precluding you from attending the workplace. The Employer requested further information and provided you with a medical questionnaire to take to your doctor. As of this date, you have not returned this medical questionnaire to the Employer.

Finally, you were scheduled to work February 2, 2022. You called into the institution prior to your shift and asked if you were still required to complete the rapid antigen testing. You were advised that if you were not fully vaccinated then you were required to submit a negative rapid antigen test before reporting to work. In response to this, you stated, “I guess I won’t be coming in ‘cause I won’t test”.

55On this evidence, I am unable to agree with the Union that the Employer lacked reasonable grounds to request a medical certificate on January 17, 2022. Prior to January 15, 2022, the Grievor had unequivocally and repeatedly indicated that he would not test and in fact had threatened legal action in relation to the testing requirement. He had on at least one occasion indicated that if he was required to test, he would not return to work. On November 9, 2021 he had been placed on an unpaid leave of absence because of his refusal to test. On December 16, 2021 he was placed on a 20 day suspension for attending at the workplace without having tested. January 15, 2022 was his first scheduled day of work following his suspension. He did not return but called in claiming to be sick. Given all of this, it was reasonable for the Employer to suspect that the reason for his continuing absence was not illness, as claimed by the Grievor during his calls of January 15 and January 16, 2022, but rather an ongoing refusal on his part to test.

56In any event, the Grievor provided a medical certificate dated January 19, 2022. The text of that medical certificate was as follows:

Jan 19, 2022

To Whom It May Concern:

Re: Charles Wilson [Date of birth, phone number and email address redacted]

Due to medical concerns/health issues, Mr. Wilson will miss all work duties on January 15-30th, 2022.

Yours Truly

57I agree with the Employer that this medical certificate was insufficient. In the circumstances, given the Employer’s immediate prior experience with the Grievor, the “medical concerns/health issues” could easily be understood as a reference to the Grievor’s view that medical evidence did not establish the utility of testing and the statement that he would “miss work” could easily be understood as a reference to the Grievor’s refusal to work if required to test. It was reasonable for the Employer to consider the medical certificate insufficient and to request further medical information, as it did. The Grievor did not, and has not, provided any further medical evidence. I conclude that the Grievor has not established that he was unable to attend to his duties due to sickness or injury during the period January 15 to January 30, 2022 for which he claimed STSP benefits. Accordingly, the grievance seeking payment for those benefits is denied.

Grounds for Termination

58The letter of termination dated May 2, 2022 relies in essence on three allegations: the Grievor’s continuing failure to comply with the Employer’s policies and directives in relation to testing; his disregard for the safety of himself, his colleagues and other people in the workplace which that failure manifests; and his attempted abuse of the STSP in seeking to use it to cover his absence following his 20 day suspension.

Abuse of STSP

59It is convenient to start with the alleged abuse of the STSP. I note that the parties directed little argument to this issue.

60Much of the evidence in relation to this allegation is set out above in the discussion of the Grievor’s claim for STSP benefits. The issues there were whether the Grievor had established he was unable to work due to sickness or injury, entitling him to the STSP benefits which he claimed, and whether the Employer had established that it had a reasonable honestly held basis for suspecting the Grievor’s claim that he was absent due to sickness or injury, entitling it to request a medical certificate. The issue here is whether the Employer has established that in claiming to be sick and thus claiming STSP benefits, the Grievor was attempting to defraud the Employer by abusing the STSP.

61While I am cognizant that the onus with respect to this issue is entirely upon the Employer, this does not change any of my conclusions above. This is because they were based on undisputed evidence and not the application of any onus of proof. I find the Grievor was not unable to work due to sickness or injury, and thus not entitled to the STSP benefits he claimed. Was that claim fraudulent? For the reasons discussed above, the Employer was justified in suspecting abuse and requesting the Grievor provide medical information substantiating his absence. While the Grievor did provide a medical certificate dated January 19, 2022, that medical certificate was insufficient. The Employer was, therefore, justified in requesting further medical information, as it did. The Grievor did not and has not provided that medical information. I draw an adverse inference that any medical information which the Grievor could have provided would not have supported his claim to be sick or his claim for STSP benefits. In the absence of any competing evidence, I find that the Grievor’s claim that he was unable to work from January 15 to January 30, 2022 due to sickness was fabricated. I further find that he was in fact able to work during that period of time but for his refusal to test and that his refusal to test was the reason for his absence during that period of time.

62In the ordinary course, this would be sufficient to establish that the Grievor’s claim for STSP benefits in relation to that period was fraudulent. I pause, however, to note the Union’s arguments that the Grievor was justified in refusing to test on the basis of the safety and privacy exceptions to the obey now/grieve later rule. I will address those arguments shortly. In my view, however, they are irrelevant to the question of whether the Grievor’s claim for STSP benefits was fraudulent. STSP benefits cover absences due to sickness or injury. Refusing to test, even if justified, does not constitute sickness or injury. The Grievor did not call in on January 15 and 16, 2022 and state that he was unable to work because he would not test. He called in and stated that he was unable to work because he was sick. This was false and the Grievor knew it. When the Employer demanded a medical certificate, the Grievor doubled down on this falsehood saying he would obtain a medical certificate and then doubled down again by providing a medical certificate as supporting his false claim that he was sick.

63Accordingly, I find that the Grievor’s claim for STSP benefits in relation to the period January 15 to 30, 2022 was fraudulent. The Employer had just cause to discipline the Grievor for this behaviour. I return to the quantum of discipline after considering the other grounds relied upon by the Employer.

Failure to Comply with the Testing Requirement

64The remaining two allegations relied upon by the Employer in its decision to terminate the Grievor were: his continuing failure to comply with the Employer’s policies and directives in relation to testing; and his disregard for the safety of himself, his colleagues and other people in the workplace which that failure manifests. There is no dispute that the Grievor did not comply with the Employer’s policies and directives in relation to testing. The arguments of the parties were principally addressed to two issues: was the Grievor justified in his refusal to comply; and if not, is the appropriate response termination of his employment as argued by the Employer, or an indefinite unpaid leave of absence as argued by the Union. I will address the issue of justification first.

65There is no dispute between the parties that the Employer’s testing requirement was reasonable. There is also no dispute that the Grievor refused to comply with the testing requirement. In the ordinary course, an employer is entitled to treat the refusal of an employee to comply with a legitimate, bona fide, employment related directive as insubordination. An employee who disagrees with the requirement is required to “obey now, grieve later”.

66The Union argues, however, that two exceptions to the “obey now, grieve later” rule apply so that the Grievor’s refusal to comply with the testing requirement was not insubordination.

The Safety Exception

67The first exception relied upon by the Union is fear for one’s health and safety. There is no dispute as to the applicable principles. Both the Union and the Employer adopt the statement of this exception contained in Brown & Beatty, Canadian Labour Arbitration, 5th Edition, at § 7:43.

Fear for one's personal health and safety is one of the most common reasons for an employee's refusal to obey a supervisor's instructions. In making the case that he or she falls within this exception, an employee must prove that he or she honestly and reasonably believed his or her health or well-being were endangered, that the employee communicated this belief to a supervisor, and that the danger was sufficiently serious to justify the action taken.

68Both parties agree that the test of whether the employee’s belief was reasonable is an objective one. The Union argues, however, that in assessing the reasonableness of the Grievor’s concerns, sensitivity should be shown to the unprecedented environment at the time and the honesty or profundity of the Grievor’s beliefs.

69The Union notes the COVID pandemic gave rise to “completely new ground for all”. In the year prior to the Grievor’s dismissal there were new variants of COVID, new vaccines and new testing and policies. The Union accepts that the weight of scientific authority establishes that vaccination and testing were and are valid responses. It notes, however, that this view was not universally held. In particular, as is clear from the statements made by the Grievor in the documents found at Appendices E (the “Notice of Liability”) and H (his February 25, 2022, written response to the February 22, 2022 allegation letter) of the Agreed Statement of Fact, the Grievor had an honest and profound belief that there was no basis for vaccination or testing.

70It is far from clear to me that the Grievor’s refusal to comply with the testing requirement was motivated by a genuine concern for his safety.

71The November 15, 2021, Notice of Liability challenges the efficacy and legality of testing, not the safety of taking a test. The only factoid in the Notice which in anyway references safety is a reference to risks associated with relying on false positive results.

72During the November 23, 2021, allegation meeting the Grievor was asked if he intended to comply with the testing requirement in the Directive. The Grievor responded that the requirement was unlawful. He did not indicate that he was concerned for his safety if he complied.

73On January 17, 2022, the Grievor sent an email to the Staff Services Manager raising a number of questions about the testing requirement. Those questions related almost entirely to the legality of the testing requirement. The Grievor did request “full and complete disclosure regarding medical test data, side effects and health concerns related to use long and short term, break down of the chemicals used in the test kits denoting any contact/exposure risks and remedies, disposal etc.” This request, however, was made in furtherance of his dubious assertions that use of test kits had been “rubber stamped by Health Canada”, had not been approved for use outside of the emergency order and “As such the test kits are an experimental medical devise [sic].” It appears to me, therefore, that his request for information was part of his legal and political arguments, not an expression of actual concern about his safety.

74On February 2, 2022 the Grievor was sent notice of an allegation meeting to be held on February 9, 2022. The Grievor did not attend the meeting. The Grievor was then provided an opportunity to respond in writing and did so on February 25, 2022, with a 23 page letter. The Grievor’s letter reviewed his concerns about sick leave and also his concerns about rapid testing. With respect to rapid testing, he reproduced his communications with the Employer up to and including the response he received from the Staff Services Manager on January 18, 2022. He continued to take issue with the utility and legality of testing. He raised concerns with two of the chemicals in the reagent solution, sodium azide and ethylene oxide, and stated: “Given the aforementioned information I am confident that the government has not done its due diligence to apprise me of the associated risks and potential harms posed to me by the implementation and use of an experimental medical devise [sic].” The Grievor then made reference to the Charter of Rights and Freedoms, the Constitution Act, 1982, the Canadian Human Rights Act, the Ontario Human Rights Code, the Genetic Non-Discrimination Act and the Canada Labour Code. The Grievor did not suggest that he had any actual concern that his health or well being would be affected if he undertook the testing.

75Consistent with the above, the Agreed Statement of Fact indicates:

If called to give evidence the Grievor would testify to his belief that the Directive and the Safe Workplace Policy are based on incorrect science.

The Grievor's belief is that the Directive and the Policy are based on “incorrect science”. He challenges the necessity of testing. There is nothing, however, to indicate the Grievor had an actual subjective belief that his safety would be compromised if he undertook the test.

76In any event, I am not persuaded that any safety concerns the Grievor may have had were objectively reasonable. As conceded by the Union, the weight of scientific authority establishes that testing (and vaccination) were and are valid responses to COVID. I accept that the Grievor has a strongly held opinion to the contrary. The Grievor, however, is not an expert and I am not prepared to ascribe any evidentiary weight to his opinion.

77For all of the foregoing reasons, I find that the “safety exception” does not apply to excuse the Grievor’s failure to comply with the Directive.

The Privacy Exception

78The Union relies upon s. 7:47 of Brown & Beatty. That section notes: “The circumstances in which employees can refuse to be tested for a virus are defined by the balancing of interests approach.” The interests being balanced are the privacy interests of the employee and the employer’s “legitimate concerns about the safety and security of its operations”.

79One of the cases cited by Brown & Beatty is the decision of Arbitrator Kitchen in EllisDon relied upon by the Employer before me. In that decision, Arbitrator Kitchen concluded an employer’s objective of preventing the spread of COVID among workers at a construction worksite outweighed the minimum intrusion on the privacy interests of employees arising from a requirement to submit to a swab of their throats and noses by a health care professional at the worksite.

80In the case before me, the Employer’s interests are even greater, at least in congregate settings such as correctional facilities. The Directive sought not only to prevent the spread of COVID among workers at the correctional facility, but also to protect the literally captive population for which they are responsible. With respect to the privacy interests of the employees, they were not required to submit the material collected to the Employer for analysis or retention: they were only required to submit proof of a negative result. This is similar to the privacy interests of the workers’ in EllisDon, which were considered insufficient by Arbitrator Murray to outweigh the employer’s interests. In an important respect, however, the intrusion upon the privacy interests of the workers affected by the Directive was even less than the workers in the EllisDon case: they were not required to submit to a swab by a third person at the workplace but only to self administer a swab in the privacy of their own homes. Accordingly, I find that the Employer’s legitimate interest in requiring employees to test outweighed the privacy interest of employees in being required to submit proof of a negative test result.

81In any event, on the materials before me, the Grievor’s concern was not with the Employer knowing whether he had tested positive or negative. The Grievor’s concern was with being required to test at all. The Union has acknowledged that the testing requirement was reasonable. Put differently, whatever privacy interests are engaged by the requirement to test, they are outweighed by the Employer’s legitimate interests in imposing the requirement.

82For all of the foregoing reasons, I am also not persuaded that the “privacy exception” applies to excuse the Grievor’s failure to comply with the testing requirement set out in the Directive.

83In the result, I find the Grievor’s failure to comply with the testing requirement set out in the Directive was insubordination.

The Appropriate Response: Termination or Indefinite Unpaid Leave of Absence

84I turn to the issue which was a significant focus of the submissions of the parties: whether the appropriate response to the Grievor’s insubordination in refusing to comply with the testing requirement was termination, or whether the Employer should have placed him on an indefinite unpaid leave of absence until such time as the Grievor complied with the testing requirement or it was removed.

85I pause here to note again that insubordination was not the only ground relied upon by the Employer in making its decision to terminate the Grievor’s employment. Rather, as discussed above, the Employer also relied upon the Grievor’s fraudulent abuse of sick leave. There is no question that abuse of sick leave justified a significant disciplinary response. The appropriate level of discipline should be assessed within the context of all actions of the Grievor relied upon by the Employer in justifying a disciplinary response. I will return to the question of the appropriate level of discipline after first addressing whether the Grievor’s insubordination also justified a disciplinary response or whether, as argued by the Union, the appropriate response was to place the Grievor on an indefinite unpaid leave of absence.

86In answering this question, the Employer seeks to analogize the Grievor’s inability to work as a result of his refusal to comply with the Directive to inability to work giving rise to frustration of the employment relationship. It relies upon Fraser Health and Croke in support of this argument.

87I agree with the Union that the doctrine of frustration has no application to the case before me². The Employer did not rely upon frustration in terminating the Grievor’s employment; it relied upon insubordination. The Employer argues the same principle applies, asserting the insubordination is the willful act which frustrates the contract, and that the frustration arises from the resulting inability to work. With respect, I disagree. Frustration occurs when an unforeseen event renders a contract impossible to perform. Inability to work as the result of a willful act is not an unforeseen event. Indeed, there are arbitral cases which expressly hold that frustration does not apply in such circumstances. In this case, there is no dispute that the Grievor’s inability to work was the result of a willful act: his refusal to comply with the testing requirements set out in the Directive. The doctrine of frustration has no application. To be clear, if the requirements of the Directive gave rise to an inability to work which was not the result of a willful act, the doctrine of frustration might apply. Inability to comply due to disability or perhaps religious belief might be some such circumstances. Although I am unaware of any disability or religious belief which would preclude an individual from testing, as opposed to being vaccinated, I express no opinion on those issues. Nothing in this decision, however, should be taken as foreclosing those possibilities.

88The Union relies on several decisions with respect to the reasonableness of mandatory COVID testing and vaccination policies, and in particular the consequences for non-compliance: Coca Cola; City of Hamilton; and Chartwell. It suggests those decisions show leave of absence without pay, and not termination, is the appropriate response for non-compliance. I am not persuaded this is the case.

89The Union relies on the statement by Arbitrator Herman in Coca Cola, at para. 49 that it was reasonable to place non-compliant employees on unpaid leaves of absence. The policy at issue before Arbitrator Herman was the product of sequential statements by the employer to its employees. The original statement indicated that employees who failed to comply “may” be subject to discipline, up to and including discharge: see para. 34. A subsequent statement indicated that non-compliant employees would be placed on unpaid leaves of absence, while repeating that discipline up and and including termination might result: see para. 36. Arbitrator Herman did find that it was reasonable to place non-compliant employees on unpaid leaves of absence. But he rejected the union’s argument that the fact the policy also provided discipline might result from non-compliance rendered it unreasonable. In doing so, he made it clear that depending on the circumstances a disciplinary response for non-compliance might be justified:

41. The Union argues that discipline can never issue for non-compliance with the Policy. Whatever the arguments against the automatic imposition of discipline or termination for non-compliance with a vaccine policy, this Policy does not provide for any automatic disciplinary response, so that issue does not arise here. What is in issue is whether a notice that discipline might later be imposed is unreasonable.

42. I do not agree that an otherwise reasonable vaccine policy cannot in principle be enforced through the imposition of discipline, including termination, in individual cases and circumstances, which is what this Policy effectively states. Beginning with the foundational decision in KVP, there have been numerous arbitration decisions upholding the imposition of discipline or termination for non-compliance with a unilaterally imposed company rule or policy.

43. Discipline and/or termination for non-compliance with the Policy might be justified in specific circumstances; for example, refusal to comply with the Policy for an extended period of time, or a material negative impact upon the ability of an employer to effectively operate its business if employees continue to remain on indefinite leave. Under the Policy, whether or not such circumstances, or others, might justify a disciplinary response is a matter to be assessed by an arbitrator when or if discipline is imposed and challenged by the Union. Any discipline that might subsequently be imposed could then be grieved by the impacted employee, the just cause standard would apply, and relevant circumstances would include those in play at the time of the discipline or termination. The Policy itself is therefore reasonable when it states that discipline for cause might result for non-compliance with the Policy.

90The Union cites City of Hamilton as holding that a policy which provided that an employee may be terminated for non-compliance with a COVID policy was unreasonable, rather the employer was required to place the employee on an unpaid leave of absence: paras. 39 - 41. In my view, it is quite clear that Arbitrator Nyman’s conclusion in that respect was based on a unique provision in the collective agreement before him: see paras 32 to 41. In particular, Article 10.3(g) of the collective agreement specifically addressed the employer’s ability to require employees to be immunized, and the consequences for employees who failed to do so. Arbitrator Nyman held that Article 10.3(g) permitted the employer to allow such employees to work or to place them on a leave of absence: it did not permit the employer to terminate their employment. As such, Article 10.3(g) constituted a fetter on the management rights of the employer. Accordingly, the policy which the employer had adopted, providing for termination of such employees, was unreasonable and unenforceable. There is no suggestion that there is a comparable provision in the collective agreement before me.

91Notably, Arbitrator Nyman specifically stated that while the policy violated Article 10.3(g) which provided that a non-complaint employee was to be placed on a leave of absence, he expressed no opinion on whether the just cause provision might be engaged (see para. 40) or whether after some period of time the employment relationship of an employee placed on an unpaid leave of absence might be considered frustrated (see para. 41).

92The Union notes that in Chartwell, Arbitrator Misra held the policy before her was unreasonable to the extent that it provided for termination of employment for non-compliance. In my view, the Chartwell decision is distinguishable in a number of respects. First, in the case before me the Union does not challenge the reasonableness of the Directive. The Directive provides for the possibility of termination for non-compliance, although phrased differently than in the policy before Arbitrator Misra. Second, the collective agreement at issue in Chartwell contained a provision (Article 18.5) which continued existing rights, privileges, benefits, practices and working conditions unless the union and the employer agreed otherwise: see para. 62. Arbitrator Misra concluded on the evidence before her that it was an “existing practice and working condition of bargaining unit employees who were non-compliant with the Employer’s vaccination policies was that they would be taken off the schedule, and effectively put on an unpaid leave of absence”: see para. 186. To the extent that the policy provided for termination, it was therefore inconsistent with Article 18.5 and not reasonable: see para. 236. There is no suggestion that similar considerations apply in the case before me. Third, central to Arbitrator Misra’s analysis was her conclusion that the policy before her provided for automatic termination without consideration of just cause, in the event of non-compliance: see paras. 218 - 220. She was at pains to state that her decision did not preclude the employer from terminating such a non-compliant employee for cause.

243. Despite my findings above, it is important to state that this decision should not be taken by those employees who choose not to get fully vaccinated as indicating that the Employer would never be able to terminate their employment for non-compliance with the policy in question, or indeed any reasonable policy. It is only the automatic application of this policy as it respects discharge that has been found to be unreasonable. Employees must understand that even if their Union and the Employer are unable to reach agreement pursuant to Art. 18.5, the Employer continues to have its Management Right under the collective agreement to terminate an employee for just cause. Hence, employees who remain non-compliant with the policy should not think that they are protected forever from the possibility of being dismissed, as the Employer may at some point do so if it feels it can establish that it has just cause for termination of any particular employee. No employer has to leave a non-compliant employee on a leave of absence indefinitely. At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee.

93In short, two of the cases relied upon by the Union, Arbitrator Herman’s decision in Coca Cola and Arbitrator Misra’s decision in Chartwell, make it clear that non-compliance may result in termination on a just cause basis. In the third, City of Hamilton, Arbitrator Nyman made it clear the issue was not before him and he was not expressing an opinion on it.

94The Union argues that Chartwell and Lakeridge Health establish an employer must prove that keeping non-compliant employees on an unpaid leave of absence will give rise to significant operational difficulties in order to justify terminating their employment instead. In my view, this is an overly broad reading of those cases. In both Chartwell and Lakeridge Health, the policy in question provided for the automatic termination of non-compliant employees after a certain period on a leave of absence or as of a certain date. The reasonableness of that portion of the policy was contested. Therefore, to satisfy the KVP criteria, the employer was required to prove its reasonableness. Evidence of significant operational difficulties posed by keeping non-compliant employees on unpaid leave was relevant to establishing that it was reasonable to automatically terminate their employment instead. In Chartwell there was no such evidence; in Lakeridge Health there was: see Lakeridge Health at paras. 182 and 183.

95In the case before me, the reasonableness of the Directive is conceded. In any event, there is no suggestion that the Directive provides for automatic termination for non-compliance. Further, the Employer in its argument emphasized that the termination of the Grievor was not automatic. Rather, it occurred following progressive discipline related to the Grievor’s earlier non-compliance with the Directive, after consideration of the Grievor’s response to the allegations for which he was ultimately terminated and of any mitigating factors. In other words, the Employer proceeded on a just cause basis in terminating the Grievor’s employment.

96As stated by Arbitrator Herman in Lakeridge Health (at para. 172):

The line of authority that follows after KVP does not stipulate that breach of a unilaterally issued policy cannot be grounds for discipline. Rather, the cases generally conclude that discipline may in fact be appropriate for breach of a unilaterally imposed company policy or rule; see, for example, Chartwell Housing REIT v. Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (Mandato),2022 CanLII 6832 (ON LA)(Misra); Unifor Local 973 v Coca-Cola Canada Bottling Limited,(Wright)(above); Coca-Cola Canada Bottling Limited v United Food and Commercial Workers Union Canada, Local 175 (Herman)(above); Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v Toronto (City), (Rogers)(above).

97In my view, the Employer was entitled to approach the Grievor’s refusal to comply with the Directive as insubordination justifying a disciplinary response in the same way that any insubordination may give rise to a disciplinary response.

98The Employer refers to a number of cases in which, following a period of compelled unpaid leaves of absence, a vaccination or testing policy provided for termination of employees who did not comply as of a certain date or an employee was individually advised that he or she would be terminated if they did not comply by a certain date and was terminated for failing to do so: Ontario Power Generation, Jamieson Laboratories and Lakeridge Health. The Employer relies upon these cases to establish what constitutes a sufficient period of reflection, reinforced by loss of income, following which an employee may be terminated for failure to comply. It argues these cases establish somewhere between 16 days and six months is sufficient.

99While of some assistance, those cases differ from the one before me in a critical respect. In those cases, the only ground relied upon by the employer was effectively the employee’s failure to comply by the date in question. Whether or not the employer had just cause depended in large part, if not entirely, on whether sufficient time had been afforded.

100For example, in Jamieson Laboratories, Arbitrator Crljenica framed the issue as follows:

54 In my view the concept of progressive discipline has some parallels to the grievance before me. In most cases of discipline, employees are subject to progressive discipline to give them an opportunity to reflect on their conduct and feel the effect of being suspended without pay in the hope that they will not engage in further misconduct.

55 Similarly, here, the grievor should have been allowed to remain on unpaid leave for a sufficient period of time to feel the financial impact of his refusal. How long? Issues arising from the Covid-19 pandemic, vaccines and testing have been, and continue to be very divisive in our society. One's views on these issues are not easily swayed. In my view, a little over two weeks falls well short of a sufficient period of time for the grievor to weigh the loss of his livelihood against his deeply held beliefs in regard to Covid-19 and rapid testing, as exhibited by his emails. As there were no operational issues impacting the employer's operation as a result of the grievor being left on unpaid leave, there was need to resort to the capital punishment of employment after only 16 days.

(The Union notes Arbitrator Crljenica’s reference to operational issues, arguing again there is no evidence of operational issues in the case before me. I do not understand Arbitrator Crljenica to be saying that there must be operational issues before an employer may terminate an employee for non-compliance. Rather, I understand him to be saying that operational issues may justify termination sooner than would otherwise be the case.)

101In the case before Arbitrator Crljenica, the grievor had not otherwise been subject to progressive discipline in relation to his non-compliance with the policy. The only action of the employer which afforded the grievor an opportunity to “reflect on their misconduct” in refusing to comply was that of placing the grievor on unpaid leave. Arbitrator Crljenica concluded that 16 days of unpaid leave was insufficient.

102In the case before me, by contrast, the Grievor was aware of the testing requirement contained in the Directive no later than November 2, 2021. He was placed on unpaid leave on November 8, 2021. On November 16, 2021, he was given a 20 day disciplinary suspension, to be served from December 16, 2021 to January 15, 2022, for failure to comply with another aspect of the Directive related to testing. From January 15, 2022 until February 1, 2022, he remained off work, on the false pretext that he was sick, but in fact because of an ongoing refusal to test. On February 2, 2022, the Grievor called EMDC to determine if he was scheduled to work, was told that he was, inquired whether he was still required to test if he was unvaccinated, was told that he was and responded: “I guess I won’t be coming in, cause I won’t test”. On February 9, 2022, the Grievor was provided with the letter setting out the allegations for which he was ultimately terminated, one of which was his refusal to test. At that point the Grievor had refused to comply with the testing requirement of the Directive for at least 14 weeks and had been off work as a result of that refusal for at least seven weeks. In my view, this combination of events was more than sufficient to permit the Grievor to reflect on his misconduct in refusing to comply with the Directive. It was clear that he was not prepared to change his behaviour.

103His continued insubordination justified the termination of his employment.

104I turn to the effect of the Employer’s rescission of the testing requirement effective May 1, 2023. I agree with the Employer that its decision to terminate the Grievor a year earlier on May 2, 2022 must be assessed on the basis of the situation at that time, not a year later: Québec Cartier v. Quebec 1995 CanLII 113 (SCC), [1995] 2 SCR 1095. The relevance of the rescission of the testing requirement on May 1, 2023 to the Employer’s decision to terminate the Grievor on May 2, 2022 is not apparent and therefore it is not admissible for that purpose. It is at least arguable, however, that it is relevant to the exercise of my discretion to substitute a lesser penalty, and admissible for that purpose: see for example Natrel Inc. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 674, (2004), 2004 CanLII 55036 (ON LA), 134 L.A.C. (4th) 142 (Albertyn); OPSEU (Esser et al) v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4664 (ON GSB) (Watters). I need not, however, decide that issue.

105Assuming without deciding I may consider that the Employer’s policies no longer preclude the Grievor from working at EMDC, I would not exercise my discretion to reinstate the Grievor. First, there is no suggestion of remorse on the part of the Grievor. He simply does not accept that what he did was wrong. Second, as argued by the Employer, the testing requirements related to a core duty of a correctional officer: the care and custody of inmates. Further, those requirements were designed to ensure the safety of the inmates and the staff working at the facility. The Grievor’s refusal to comply with the testing requirement, as well as his prior discipline for provocatively attending work without being tested, flow from strongly held beliefs. The Grievor is entitled to his beliefs. But he is not entitled to let those beliefs override his core duties as a correctional officer. Nor is he entitled to put the safety of others at risk in the pursuit of his beliefs. Should a conflict arise again in the future, I am not satisfied the Grievor can be relied upon to put his beliefs aside, perform his duties in relation to the care and custody of inmates and observe rules designed to ensure the safety of the inmates and others. Third, among the grounds relied upon by the Employer for terminating the Grievor’s employment was his fraudulent abuse of the STSP scheme. Rescission of the testing requirement eliminates the specific circumstance which gave rise to the abuse, but not the Grievor’s willingness to do so. Abuse of sick leave is generally seen as very serious fraudulent conduct which in and of itself justifies termination of employment in the absence of compelling mitigating factors. There are none here.

Conclusion

106For all of the foregoing reasons, all of the grievances are dismissed.

Footnotes

1. 1The exact same statements were repeated in a letter dated February 22, 2022 from the same Staff Services Manager to the Grievor, with the omission of the word “Finally” in the final paragraph set out below.
2. 2I also agree with the Union that Fraser Health makes no reference to the doctrine of frustration.