GSB# 2021-2594; 2022-0880; 2022-4338
UNION# 2021-0526-0034; 2022-0526-0006; 2022-0526-0017
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McGann)
Union
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
James Craig Morrison Watts Hurtado Counsel
FOR THE EMPLOYER
Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel
HEARING
August 14, 2024
Decision
[1]. I have before me three grievances referred under Article 22.16.1 of the Central Collective Agreement between the parties. Article 22.16.1 provides for the resolution of grievances “in an expeditious and informal manner”. The mediator/arbitrator is to assist the parties in attempting to settle the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16.2 provides the mediator/arbitrator may “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”. Decisions reached are without precedent unless the parties agree otherwise. Decisions are to be succinct and to be issued within five days of the completion of the proceedings unless the parties agree otherwise. Attempts to resolve these matters through mediation were unsuccessful. A case management decision was issued on April 3, 2023 with respect to two of the grievances. The parties subsequently agreed to add the third. The parties agreed to waive the five day time limit for the issuance of this award.
[2]. The Employer filed a Statement of Material Facts. While subject to some qualifications, which I have added in square brackets, those facts are not in dispute unless noted. The Grievor alleges certain other facts which I will address to the extent they are material in the course of this decision.
GSB File No. 2021-2594 / OPSEU File No. 2021-0526-0034
[3]. This grievance alleges the Grievor was improperly placed on an unpaid leave of absence from November 9 to 16, 2021, during which period he lost four shifts.
[4]. The relevant portions of the Statement of Material Facts are as follows:
The Employer introduced the Safe Workplace Directive (“the Directive”), which applied to all employees in the Ontario Public Service, on October 1, 2021.
The Grievor was, at all relevant times, unvaccinated or did not disclose his vaccination status. On October 29, 2021, the Grievor was advised, by email, by Mr. Samac that should he remain unvaccinated or elect not to disclose his vaccination status, he would be required to complete regular rapid antigen COVID-19 testing and provide the results to the Employer.
Prior to the introduction of the Directive, the Grievor had to complete a COVID-19 screening tool whereby he would affirm that he had no symptoms of COVID-19, prior to attending the workplace. If he advised the Employer he was displaying any symptoms of COVID-19, he would not be permitted to enter the workplace.
However, as of November 1, 2021, the Directive required the Grievor to self-administer regular rapid antigen COVID-19 tests and provide the results to the Employer, in order to demonstrate he was able to attend the workplace safely. [The Grievor states that he only picked up the test kits on November 3 and so he was not required to provide test results as of November 1.]
…. At the relevant times for this grievance, the Employer was providing COVID-19 testing kits to employees who were self-administering tests.
The Grievor was scheduled to pick up his COVID-19 test kits on November 3rd, 2021. The Grievor collected his COVID-19 test kits.
The Grievor had concerns with the safety and efficacy of the COVID-19 testing kits and sent several emails to various parties.
On November 8th, the Grievor was advised by telephone recording to attend courtroom 7-2 at 9:00 am the following day (November 9th).
Prior to attending the workplace on November 9th, the Grievor completed the COVID-19 screening he had been using prior to the introduction of the Directive, but he did not submit any results of a self-administered rapid antigen COVID-19 test in accordance with the Directive.
The Grievor was sent home upon attending the workplace by Mr. Samac (his supervisor).
On November 9, 2021, the Grievor was advised by telephone recording that he was to attend courtroom 7-2, at 9:00 am for Tuesday, November 10, 2021.
On November 10, the Grievor provided his completed COVID-19 screening based on a self-assessment confirming that he had no COVID-19 symptoms. The Grievor did not submit any results of a self-administered rapid antigen COVID-19 test in accordance with the Directive.
Again, the Grievor was immediately sent home upon attending the workplace. [The Grievor disagrees that he was sent home “immediately”, but states he was in the workplace for “less than 30 minutes”.]
On November 10, 2021, the Grievor was advised via email that: "effective Tuesday, November 9, 2021, he had been placed on an unauthorized unpaid leave of absence until further notice as he failed to adhere to requirements under the Ontario Public Service COVID-19 Safe Workplace Directive.”
On November 10th, the Grievor requested that he be permitted to use a vacation credit to take a vacation day on November 12th. His explanation was that he had sent a number of email questions to the Employer with respect to the efficacy and safety of the COVID-19 testing kits that remained unanswered.
This request was denied by the Employer, due to the operational demands. [The Grievor agrees that his request was denied, but does not accept that it was due to operational demands. He asserts the Employer could have used employees from other court houses to cover his absence.]
On or around November 16, 2021, the Grievor completed a rapid antigen test through the OPS Screening Solution tool to fulfill his obligations under the Directive and he returned to the workplace the following day.
The Grievor had missed four scheduled shifts (November 9, 10, 12 and 16) during the time he was placed on an unpaid leave of absence.
The Grievor filed a grievance with respect to being placed on an unpaid leave of absence on November 12, 2021.
At the Formal Resolution Stage Meeting on December 14, 2021, for the first grievance, the Grievor said, at the relevant times, he was forced to decide between following the Directive or following his role as an essential worker.
[The Grievor disputed the accuracy of this statement, stating:
The grievor’s position is that some of the days, like November 16, the employer chose not to provide work . For November 9, 2021, the grievor thought he did not have to test and provide results ahead of going to work. When it says “forced”, the only time the grievor thought about essential worker part of it, is on Nov 10, understood had to report to work on Nov 9.]
- At that meeting he stated that he had contacted the Ministry of Labour, but they had not attended the workplace. However, he did not provide any explanation for why the Ministry of Labour refused to attend.
[The Grievor disputed the accuracy of this statement, stating:
MOL never said to the grievor they wouldn’t attend the workplace when the grievor called MOL to ask questions about circumstances of workplace. He did ask them to attend the workplace. They didn’t attend which is different than them refusing to attend.]
[5]. The Grievor gave evidence as to a variety of medical issues which either he or his family members have. He stated these medical issues caused him to have concerns about the safety of the rapid antigen COVID-19 test kits which had been provided by the Employer. He directed questions about these concerns to various people, including Mr. Samac. On Monday, November 8, 2021, the Grievor sent an email asking if he could come to work without doing the rapid antigen test because his questions with respect to his safety concerns had not been answered. He did not get a response to that email. The Grievor testified that as a result, when, he was scheduled to work on November 9, 2021, he thought he could come to work on the basis of a self screening test, rather than the rapid antigen test. As a result, the Grievor claims he was “confused” when he was placed on an unpaid leave of absence. When he saw he was scheduled for November 10, 2021, he thought perhaps he could use vacation credits and accordingly requested vacation. As noted above, his request was denied.
[6]. In cross-examination, the Grievor agreed that he knew he was expected to use the rapid antigen test as of November 8, 2021. He agreed that he was never told he could attend at the workplace without submitting the results of the rapid antigen test. He specifically agreed that Mr. Samac never told him that he could attend the workplace without taking the rapid antigen tests until Mr. Samac answered his questions.
[7]. The Employer filed a Declaration from Mr. Samac. Mr. Samac stated that he responded to the Grievor’s questions as appropriate and when he could not answer them referred them on to contacts such as Human Resources and Employee Relations. Mr. Samac also stated, with respect to the relevant period, the Grievor was always advised that he needed to submit a negative rapid antigen test and that the Grievor did not advise him, or to his knowledge anyone else, on November 8, 2021 that he was not sure if he needed to submit a rapid antigen test prior to attending the workplace. Mr. Samac also explained the operational considerations which resulted in the denial of the Grievor’s request to take November 12, 2021 as a vacation day: November 11, 2021 was a holiday for the Ontario Public Service and several other employees had already requested November 12, 2021 off as a vacation day. Mr. Samac noted that he also denied vacation requests by other employees for November 12, 2021 and noted that it is not his normal practice to use employees from other court houses to cover vacation absences. With respect to the Grievor’s assertion that the Employer “chose not to provide work” for November 16, 2021, Mr. Samac noted that the Grievor had in fact been scheduled to work on that day.
[8]. Mr. Samac was not cross-examined. Accordingly, where his evidence conflicts with that of the Grievor, I adopt the evidence of Mr. Samac.
[9]. The Union argues that the Grievor’s questions about the rapid antigen tests flow from his rights under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The Union asserts that workers have the right to a safe workplace and to ask questions to their employers about health risks. The Union argues the Grievor ought not to have been placed on a leave of absence without pay while the Employer “took its sweet time” in providing answers to his questions.
[10]. The Directive states in relevant part:
1Policy Statement
The Ontario Public Service (OPS) is committed to the health, safety, and wellbeing of OPS employees in the physical workplace, in accordance with the Occupational Health and Safety Act and OPS Occupational Health and Safety Policy. Promoting high rates of vaccination against COVID-19 is a priority of the OPS. In doing so the OPS will:
Help to reduce the risk of COVID-19 transmission in accordance with public health guidance.
Provide employment accommodation – up to the point of undue hardship – in accordance with the Ontario Human Rights Code and OPS Disability Accommodation Policy, as applicable.
2Effective Date and Timing
As approved by Treasury Board/Management Board of Cabinet on September 14, 2021 this directive comes into effect on October 1, 2021. The directive will be reviewed for relevancy, necessity, and alignment with public health advice at a minimum on an annual basis.
3Purpose
The purpose of this directive is to:
Help protect the health, safety, and well-being of all employees and Ontarians by promoting higher rates of vaccination against COVID-19. To be clear, this directive does not replace any of the public health measures that continue to be in place at the workplace (e.g., personal protective equipment, masking, screening, and distancing) and which all employees must continue to follow.
Require that employees who are not fully vaccinated against COVID-19, without a valid medical exemption, participate in an educational program on the benefits of vaccination.
Require that employees who are not fully vaccinated against COVID-19 are being tested for COVID-19 exposure, prior to entering the workplace, to minimize the risks to the workplace, employees, and the public we serve.
To support the management of the COVID-19 pandemic response.
Comply with direction from the Chief Medical Officer of Health under the authority of the Reopening Ontario Act.
5 Mandatory Requirements
All employees will be required to provide one of the following:
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.
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).
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.
[Bolded italicized emphasis added. Bolded non-italicized emphasis in original.]
[11]. While the Union challenges the reasonableness of the Directive’s statement that failure to comply with the testing requirement may give rise to discipline (as discussed further below in relation to the second grievance), the Union does not challenge the reasonableness of the testing requirement set out in the Directive nor, in general, the statement that failure to comply may result in an employee being placed on an unauthorized, unpaid leave of absence.
[12]. Notwithstanding the Grievor’s evidence as to a variety of medical issues which either he or his family members have and that this underlies his concern with taking the rapid antigen test, there is nothing in the evidence, nor for that matter in the submissions by the Union, to suggest that he made these issues known to the Employer let alone sought accommodation on the basis of these concerns. This is not, therefore, an accommodation case. I also note that there is no reference to these personal medical issues in the “synopsis of facts” provided by the Grievor on December 29, 2021.
[13]. On the evidence, I find there was never a representation by the Employer to the Grievor that he was exempted from the requirement to take a rapid antigen test and report the results prior to attending at the workplace. I also find that there is no evidence that the Employer’s responses to the Grievor’s myriad questions were unreasonably delayed.
[14]. The only question, therefore, is whether, as the Union asserts, the OHSA gave the Grievor the right to have his questions answered before complying with the Directive. The Union does not identify which provisions it asserts give rise to this right. The synopsis of facts provided by the Grievor notes that he is a member of the joint health and safety committee established under the OHSA. Section 9(18) gives certain responsibilities to the committee with respect to identifying hazards, obtaining information from an employer and making recommendations to the employer. However, as noted in Ontario Public Service Employees Union (McGann) v Ontario (Ministry of the Attorney General), 2023 CanLII 89646 (ON GSB), those responsibilities are assigned to the committee as a whole, not an individual worker member. In short, the Union did not direct me to a provision in the OHSA which gives rise to an unqualified right on the part of the Grievor to have his questions answered prior to being subject to the requirement in the Directive to administer a rapid antigen test and report the results prior to entering the workplace and I am not aware of a provision which gives rise to such a right.
[15]. Finally, on the evidence I find the Grievor’s request to take November 12, 2021 as a vacation day was denied by the Employer for bona fide operational reasons.
[16]. For all of the foregoing reasons, the grievance is denied.
GSB File No. 2022-0880 / OPSEU File No. 2022-0526-0006
[17]. This grievance alleges the Grievor was unjustly disciplined on January 19, 2022 when the Employer gave him an eight day suspension. The letter of discipline sets out the following grounds for discipline:
On four scheduled workdays, you failed to follow the OPS COVID-19 Safe Workplace Directive by not taking and providing the test results prior to attending the workplace. As such you were on an unauthorized level without pay on November 9, 10, 12 and 16, 2021.
On Wednesday, December 1, 2021 during the allegation meeting, you confirmed that you were aware of the OPS COVID-19 Safe Workplace Directive, but were unaware of the testing requirements for those deemed unvaccinated. This was your response notwithstanding the communications sent to you outlining these requirements.
Based on the information gathered, I have concluded that your actions/behaviour constitute a contravention of the OPS COVID-19 Safe Workplace Directive.
[18]. This grievance relates to the same four days of unauthorized leave discussed above and the facts and findings set out above apply equally to it. The Employer’s Statement of Material Facts contains the following additional facts in relation to this grievance, which are not disputed except as noted:
On November 25, 2021, the Grievor was sent a letter requiring him to attend an allegation meeting with the Employer with respect to his failure to adhere to the OPS COVID-19 Safe Workplace Directive.
The allegation meeting proceeded on December 1, 2021. At the allegation meeting, the Grievor stated that he had been unaware of the requirements of the Directive and that he had been unaware he was scheduled to work on November 12 and 16, 2021.
[The Grievor disputed the accuracy of this statement, stating:
The grievor’s position is that there was confusion re Nov 12 to Nov 16 dates. He does not recall he was required to provide the RAT tests prior to starting work. No sure that the test is what is required at the relevant time. He recalls he was not supposed to be scheduled to work Nov 12 to Nov 16. The letter said unpaid leave as of Nov 9. Never scheduled me until he provided test results on Nov 16, 2021.]
After reviewing the events and the Grievor’s responses at the allegation meeting, Manager of Court Operations, Monica Simion, consulted with the Director of Court Operations and various supports, including Employee Relations, Human Relations and Legal, in determining the appropriate response to the Grievor’s actions.
On January 19, 2022, Monica Simion issued the Grievor a letter suspending him eight days without pay for contravening the OPS COVID-19 Safe Workplace Directive.
The Grievor filed a grievance with respect to his suspension without pay on February 1, 2022. The Grievor filed an amended version of this grievance on February 22, 2022.
[19]. I note, notwithstanding the Grievor’s “dispute” of the accuracy of para. 27 of the Employer’s Statement of Material Facts and claim that he was not sure whether he was required to provide a rapid antigen test prior to starting work on the relevant dates, that in cross-examination he acknowledged that he was aware of the requirement to do so. Further, Mr. Samac’s unchallenged evidence was that the Grievor was scheduled to work on November 12 and 16, 2021.
[20]. The Employer notes the Grievance Settlement Board has held that refusal to comply with the requirements in the Directive to take a rapid antigen test and report the results of that test to the Employer prior to reporting to work constitutes just cause for discipline: Ontario Public Service Employees Union (Wilson) v Ontario (The Ministry of the Solicitor General), 2023 CanLII 81648 (ON GSB) (Anderson) and Ontario Public Service Employees Union (Titley) v Ontario (Ministry of Public and Business Service Delivery), 2024 CanLII 52279 (ON GSB) (Bernhardt).
[21]. The Union relies upon Humber River Hospital v Teamsters Local Union No. 419, 2024 CanLII 19827 (ON LA) (Parmar) to argue an employee cannot be disciplined for refusing to consent to a medical procedure or refusing to disclose medical information. This, it argues, is a well established legal principle which was not considered in either Wilson or Titley.
[22]. The Union argues that the self-administration of a rapid antigen test, which involves placing a swab up one’s nose, constitutes a medical procedure. While the Employer contests this characterization, the NAV Canada line of cases upon which Arbitrator Parmar relies, and which are discussed further below, are not limited to consent to medical procedures but extend to consent to medical testing. In any event, the Directive requires not only that employees take the test, but that they inform the Employer of the results. The results constitute medical information in relation to the person who took the test. I turn, therefore, to consider Humber River Hospital.
[23]. In Humber River Hospital, the employer adopted a policy which required all employees to provide proof of vaccination. The policy also provided that employees who failed to comply “will be subject to disciplinary action up to and including termination.” The two grievors before Arbitrator Parmar did not comply and their employment was terminated. The grievances before Arbitrator Parmar alleged this discipline was unjust. The union did not challenge the reasonableness of the policy in so far as it required employees to be vaccinated, but did challenge the reasonableness of the policy is so far as it provided that employees who failed to consent would be subject to discipline. The union argued employees cannot be disciplined for exercising their right not to consent to medical treatment and/or the disclosure of private medical information to their employer.
[24]. Arbitrator Parmar noted that vaccination was a medical procedure. Arbitrator Parmar discussed Electrical Safety Authority v. Power Workers’ Union, 2022 CarswellOnt 395 (Stout) and then referred to a group of cases (the “NAV Canada line of cases”) which she stated established a “long-standing, well-established principle, that discipline is not an appropriate employer response to an employee’s exercise of the right to determine whether to consent to medical treatment or disclose medical information”: see para. 50. In particular, she discussed: Canadian Assn. of Industrial, Mechanical & Allied Workers, Local 12 v. Shell Canada Products Ltd. (1990), 1990 CanLII 12731 (BC LA), 14 L.A.C. (4th) 75 (Larson); NAV Canada and Canadian Air Traffic Control Assn. (1998), 1998 CanLII 30171 (CA LA), 74 L.A.C. (4th) 163 (Swan); and, later in her decision, Complex Services Inc. and OPSEU, 2012 CanLII 8645 (Surdykowski). She cited the following cases as also recognizing this principle: Masterfeeds and UFCW, Local 1518 (2000), 2000 CanLII 50149 (BC LA), 92 L.A.C. (4th) 341 (Kinzie); Via Rail Canada Inc. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (2002), 2002 CanLII 79137 (CA LA), 106 L.A.C. (4th) 110 (Hope); Veridian Corp. and International Brotherhood of Electrical Workers, Local 636, [2014] O.L.A.A. No. 365 (Slotnick); Bristol Machine Works Ltd. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 2020-22, [2017] O.L.A.A. No. 365 (Tremayne); and UFCW, Local 206 and G&K Services Canada Inc., 2013 CanLII 34202 (Gee).
[25]. The employer relied upon a large number of cases upholding the reasonableness of mandatory COVID vaccination policies which provided for termination for failure to comply. Arbitrator Parmar distinguished those cases on two bases: first, that they were concerned with the reasonableness of the policy, and not individual cases of discipline: see para. 51; second, with the exception of Lakeridge Health v CUPE, Local 6364, 2023 CanLII 33942 (ON LA (Herman), those cases did not address the issue of consent: see para 50 and 54 et seq.
[26]. I accept that the cases referenced by Arbitrator Parmar addressed the reasonableness of COVID vaccination policies and not individual cases of discipline. I am not persuaded, however, that they can be distinguished on that basis. Arbitrator Parmar held that an employee could not be disciplined for refusal to comply with a mandatory vaccination policy. With respect, it appears to me the inevitable consequence of this reasoning is that a policy which provides that there will be a disciplinary response for failure to get vaccinated, such as the one before Arbitrator Parmar, is itself unreasonable.
[27]. Nor do I accept Arbitrator Parmar’s statement that only one of the prior cases dealt with the issue of consent. For example, in Electrical Safety Authority v. Power Workers’ Union, at para. 64, Arbitrator Stout noted the law recognizes “an individual’s right to make decisions about their bodily integrity, including the right to make decisions regarding medical treatment, which would include receiving a vaccination.” While Arbitrator Stout did not use the words “right to consent”, surely that is simply another way of describing the right to make decisions about bodily integrity, including medical treatment. Arbitrator Stout then went on to reject the argument that as a result the employer could not require employees to be vaccinated. Rather, at para. 68, Arbitrator Stout held that “where the risk to health and safety is greater, an employer may encroach upon individual employee rights with a carefully tailored rule or policy”.
[28]. Nonetheless, it is correct that Electrical Safety Authority v. Power Workers’ Union does not refer to any of the NAV Canada line of cases. Further, while I have not reviewed all of the other COVID cases for this purpose, I accept Arbitrator Parmar’s statement that with the exception of Lakeridge Health they also do not contain a discussion of the NAV Canada line of cases.
[29]. In Lakeridge Health, the union made the following argument before Arbitrator Herman:
- The case law is clear, asserts the Union, that employees cannot be disciplined for refusing medical treatments or for refusing to disclose medical information. In support of this proposition, CUPE refers, for example, to Complex Services Inc. v Ontario Public Service Employees Union, Local 278, 2012 CANLII 8645 (ON LA) (Surdykowski). This principle also applies, the Union submits, if the discharges are based on the non-culpable doctrine of frustration.
[30]. Arbitrator Parmar noted Arbitrator Herman rejected this argument at paragraphs 171 to 174 of his decision, which she reproduced in her decision. Arbitrator Parmar then said:
56In my view, with respect, the award in Lakeridge Health did not respond to the substance of the principle set out in Complex Services. It does not grapple in any meaningful way with the principle that discipline is not an appropriate response to an employee exercising his or her right to consent to receiving medical treatment or disclosing medical information. Rather, the award focuses on the specific circumstances that led to the employer’s vaccination policy, that is the significant health and safety risks associated with the COVID-19 pandemic, and the reasonableness and necessity of such a policy in those circumstances. A similar approach was taken in Central West LHIN; Revera Inc., supra; and The Corporation of the City of North Bay, supra. The arbitrators in those cases considered the fact that the employers’ mandatory vaccination policies were reasonable as sufficient to conclude that non-compliance with the policies was a basis for discipline.
57There is, in my view, a significant issue with this approach. The existence of an employer policy, even a reasonable and necessary one, is not a sufficient answer to a challenge to discipline based on that policy. It is useful at this juncture to review the principles set in the seminal decision of KVP:
I – Characteristics of Such Rule
A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following:
It must not be inconsistent with the collective agreement.
It must not be unreasonable.
It must be clear and unequivocal.
It must be brought to the attention of the employee affected before the company can act on it.
The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
Such rule should have been consistently enforced by the company from the time it was introduced.
II – Effect of Such Rule re Discharge
If the breach of the rule is the foundation for the discharge of an employee such rule is not binding upon the board of arbitration dealing with the grievance, except to the extent that the action of the company in discharging the grievor finds acceptance in the view of the arbitration board as to what is reasonable or just cause.
In other words, the rule itself cannot determine the issue facing an arbitration board dealing with the question as to whether or not the discharge was for just cause because the very issue before such board may require it to pass upon the reasonableness of the rule or upon other factors which may affect the validity of the rule itself.
The rights of the employees under the collective agreement cannot be impaired or diminished by such a rule but only by agreement of the parties.
58The above quote highlights that the analysis of whether a rule or policy is reasonable is separate from an analysis of whether there is just cause for discipline for breach of that rule. As stated by Arbitrator Wright in Coca-Cola Canada Bottling Ltd., supra¸ “a just cause analysis is broader and more rigorous than is the determination of whether a workplace policy is reasonable”. The fact that the employer’s rule, requiring vaccination in order to work in the workplace is reasonable, is not a sufficient answer to the question of whether discipline is justified in the specific circumstances in which it was issued.
59Moreover, the focus on the significant and exceptional circumstances which the policy is intended to address, and the need to ensure the policy is enforced, as a justification for discipline fails to take into account the fact that, as noted in the NAV Canada line of cases, the employee’s right of medical consent does not remove the employer right to ensure a safe workplace. As noted above, the policy requirement of vaccination in order to work can be enforced through non-disciplinary measures, including potentially – as acknowledged by the Union in this case – by way of a non-disciplinary termination.
60For the above reasons, I do not find the caselaw upon which the Hospital relies as providing a persuasive authority to go against the well-established principles in the NAV Canada line of cases, and conclude that discipline is now an appropriate response to an employee’s exercise of the right to determine whether to consent to medical treatment or disclosure of medical information. Such a conclusion would be a significant departure from long-standing arbitral principles and, in my view, would require a fulsome analysis directly addressing the issue of medical consent to be persuasive.
[31]. This argument demands careful consideration. I begin by noting Complex Services Inc. simply cites several other cases for the proposition that an employee cannot be disciplined for refusing medical treatments or for refusing to disclose medical information: see para. 86. One of those cases was Arbitrator Swan’s decision in NAV Canada, also cited by Arbitrator Parmar. A central part of the reasoning in NAV Canada is reproduced by Arbitrator Parmar at para. 38 of her decision. Arbitrator Swan stated:
64Specifically, it is difficult to imagine circumstances in which an employee could be disciplined for not granting consent. The very notion of consent would, indeed, be undermined by any such conclusion. There may be administrative consequences of refusal of consent, including being placed on leave, paid or unpaid depending upon the circumstances, but I am unable to envision circumstances in which discipline for, for example, insubordination could ever be justified by a refusal to provide information or to undergo an examination which has no statutory or collective agreement authorization, and which would amount to a serious invasion of personal privacy or integrity.
65This is not to say that there will not be circumstances where discipline may arise for related reasons. For example, there could be discipline for abuse of sick leave, or for breach of any of the regulatory requirements of disclosure of disability conditions, or for a refusal to undergo medical examinations which are required by statute or regulation. At least in ordinary circumstances, however, I cannot imagine that it would ever be justified for the Employer to use threats of disciplinary action to compel an employee to consent to disclosure of medical information or to a medical examination.
The emphasis provided by underlining is that of Arbitrator Parmar. The emphasis provided by bolding is mine. I provide this emphasis to demonstrate that NAV Canada does not stand for the proposition that an employee can never be disciplined for failing to provide consent. On the contrary, NAV Canada recognizes that an employee’s right to refuse consent within an employment context may be superseded by statutory or collective agreement authorization and that refusal to provide medical information or undergo an examination in such circumstances, or other circumstances which are not “ordinary”, may be grounds for discipline for insubordination.
[32]. Indeed, at p. 166 to p. 169 of NAV Canada, Arbitrator Swan reviewed a number of statutory and regulatory provisions which for certain purposes compelled medical examinations and disclosure of medical information of the employees in the bargaining unit in question. Arbitrator Swan then stated (at p. 169):
It should be observed that despite the stringency of all of the above medical certification requirements, none of those requirements are put in issue by the present grievance. The Association concedes the necessity for compliance with the statutory and regulatory medical certification scheme, and does not attack any requirement to consent to the release of medical information or a medical examination which arises under those provisions. The present grievance deals with other circumstances where the Employer, or its predecessor Transport Canada, has in the past and may in the future attempt to compel the release of medical information to, or a medical examination by, a physician of its choice.
[33]. The NAV Canada line of cases are concerned with “ordinary circumstances”: the ability of an employer to require an individual employee to provide medical information or submit to a medical examination or drug test, to establish fitness to work. See: Shell Canada Products Ltd., at p. 76; Masterfeeds, p. 342; NAV Canada, at p. 165; Complex Services Inc. at para. 2; Via Rail Canada Inc., at p. 111; Veridian Corp., at first paragraph; Bristol Machine Works Ltd., at para. 1.; G&K Services Canada Inc., at para. 3. The consequences of the employee’s decision were borne by the employee. By contrast, the issue raised by the pandemic is the ability of an employer to require employees to test of get vaccinated in order to reduce the risk to others. These are not ordinary circumstances. As stated by Arbitrator Herman at para. 171 of Lakeridge Health, the context is different.
[34]. Further, the mandatory vaccination policies in both Lakeridge Health and the case before me are not simply authorized by statute, they are required by statute. In Lakeridge Health, the employer’s policy was issued in order to comply with Directive #6 for Public Hospitals issued by the Chief Medical Officer of Health for Ontario pursuant to section 77.7 of the Health Protection and Promotion Act, R.S.O. 1990 c.H.7: see para. 8. Similarly, in the case before me, the Directive requiring mandatory vaccination or in the alternative testing was issued in order to comply with direction from the Chief Medical Officer under the authority of the Reopening Ontario Act, S.O. 2020, c. 17. Further, the OHSA requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker”: see s. 25(2)(h). As stated by Arbitrator Herman at para. 171 of Lakeridge Health:
Unvaccinated employees presented greater risks for all employees and patients, not only for themselves. The Policy was designed to protect the health and safety of both employees and patients, when vaccinations were the most effective protective measure, against transmission, against becoming infected and against the potentially life-threatening consequences of becoming infected.
On those facts, which are equally applicable to the case before me, the OHSA provides employers not only with the statutory authorization to require vaccination or testing but the obligation to do so.
[35]. At para. 47, Arbitrator Parmar states: “mandatory vaccination employer policies do not actually mandate that the employee must be vaccinated; they only mandate that the ability to work in that workplace is dependent on being vaccinated.” I would note the same could be said of many workplace rules. For example, a workplace rule with respect to attendance at work does not actually mandate that an employee must be punctual; it only mandates that the ability to work in the workplace is dependent on being punctual. As part of the fundamental right of control over one’s movements, every employee still has the right to decide whether or not to be punctual. There is no doubt, however, that the employer may enforce a necessary and reasonable workplace rule with respect to attendance through the imposition of discipline.
[36]. At para. 47, Arbitrator Parmar states: “Consent to medical procedures or disclosure of private medical information is not an area that falls under the employer’s sphere of authority.” For the reasons set out above, in my view this assertion is premised upon an overly broad reading of the scope of the right to consent within a workplace setting recognized by the NAV Canada line of cases. NAV Canada in particular recognized that an employee’s right to refuse consent within an employment context may be superseded by statutory or collective agreement authorization and that refusal to provide medical information or undergo an examination in such circumstances, or other circumstances which are not “ordinary”, may be grounds for discipline for insubordination.
[37]. At para. 47, Arbitrator Parmar states: "To respond to an employee’s exercise of that individual right with discipline is to say that they are deserving of censure for having exercised their choice in a manner differently than that directed by the employer.” The word “censure” suggests discipline for failure to comply is a form of moral judgment. It is not. It is an attempt by an employer to enforce a rule which is both reasonable and necessary to the employment context. Chronic absenteeism is not a criminal offence, but it may be a disciplinary offence. Breach of some workplace rules, such as with respect to theft, may also be a criminal offence, and in that sense a matter of moral judgement, but that is a matter for the courts, not the employer.
[38]. At para 58, Arbitrator Parmar states: “The fact that the employer’s rule, requiring vaccination in order to work in the workplace is reasonable, is not a sufficient answer to the question of whether discipline is justified in the specific circumstances in which it was issued.” I agree. This principle was stated in KVP. However, the full context for the statement is as follows:
- If the breach of the rule is the foundation for the discharge of an employee such rule is not binding upon the board of arbitration dealing with the grievance, except to the extent that the action of the company in discharging the grievor finds acceptance in the view of the arbitration board as to what is reasonable or just cause.
2 In other words, the rule itself cannot determine the issue facing an arbitration board dealing with the question as to whether or not the discharge was for just cause because the very issue before such board may require it to pass upon the reasonableness of the rule or upon other factors which may affect the validity of the rule itself.
[Emphasis added.]
That is, KVP does not preclude an arbitrator from upholding discipline on the basis of breach of a rule; on the contrary, it recognizes that if the arbitrator concludes that the rule was reasonable, the arbitrator may also conclude its breach gives rise to just cause for discipline.
[39]. At para. 59, Arbitrator Parmar states:
Moreover, the focus on the significant and exceptional circumstances which the policy is intended to address, and the need to ensure the policy is enforced, as a justification for discipline fails to take into account the fact that, as noted in the NAV Canada line of cases, the employee’s right of medical consent does not remove the employer right to ensure a safe workplace. As noted above, the policy requirement of vaccination in order to work can be enforced through non-disciplinary measures, including potentially – as acknowledged by the Union in this case – by way of a non-disciplinary termination.
[40]. I am troubled by the implication that the possibility of enforcing a policy by non-disciplinary measures precludes an employer from deciding to enforce it by disciplinary measures. In any event, I am not persuaded that the requirement of vaccination can necessarily be effectively enforced through non-disciplinary measures, in particular an unpaid leave of absence to which Arbitrator Parmar refers. Placing employees on indefinite unpaid leaves of absence can pose significant challenges and costs to employers. These can include: challenges of attempting to recruit to fill positions on a temporary basis of unknown duration (discussed by Arbitrator Herman in Lakeridge Health from paras. 177 to 181); ongoing cost of providing benefits or other entitlements to employees absent on unpaid leave, if the collective agreement so provides; and possible contingent liability for termination and severance pay should the employment of those individuals be ultimately terminated.
[41]. In any event, it is not apparent to me how non-disciplinary measures, including non-disciplinary release, can enforce the testing requirement which is at issue in the case before me. The Grievor chose not to submit the results of a rapid antigen test and chose not to take the test on November 9, 10, 12 and 16, 2021. That is, he refused to disclose medical information or to submit to a medical test on each of those days. On each of those days, he was placed on an unauthorized, unpaid leave of absence. On his next scheduled work day, he chose to take the test and disclose the results to his Employer and was permitted to work. But what if on future days he chose not to take the test or not to disclose the results? True, the Grievor could have been placed on an unauthorized, unpaid leave of absence for each of those days. However, absent a disciplinary sanction, the Grievor would effectively get to take unpaid leave of absence days whenever he chose, notwithstanding that they were unauthorized. To say that this would be disruptive of the Employer’s legitimate interests in operating its business is an understatement. Assuming non-disciplinary release is a measure which the Employer could use to address a refusal to vaccinate, it is difficult to see how it would be effective to prevent occasional absences as a result of sporadic refusals to test or disclose the results.
[42]. The focus of the Union’s argument with respect to this grievance is the issue of consent. However, given the Union’s argument in relation to the first grievance that the Employer ought to have answered the Grievor’s questions prior to placing him on the unauthorized, unpaid leave of absences, I will also briefly address the question of whether the Grievor was excused from the requirement to “work now and grieve later” on the basis of the “safety exception”. I discussed the safety exception in Wilson. As stated at para. 67 of that decision, in order to invoke that exception, the concerns must be objectively reasonable. There is no evidence before me that the Grievor’s concerns reach that level. Accordingly, I find the Grievor was required to comply with the testing and reporting requirements set out in the Directive notwithstanding the fact that, in his opinion, his questions with respect to the safety of the tests had not been fully and properly answered.
[43]. For all of the foregoing reasons, I see no reason to depart from Wilson and Titley. Accordingly, I conclude that the Grievor engaged in misconduct by refusing to comply with the testing requirements set out in the Directive.
[44]. That, however, was not the limit of the misconduct for which the Grievor was disciplined. He also attended at the workplace on November 9 and 10, 2021 without being tested, contrary to the Directive. These constitute two further, separate acts of misconduct: see Wilson at para. 40. Further, they do not engage the right to consent: even if the Grievor had the right to decline to test or report the results, he did not then have the right to attend at the workplace in clear contravention of the Directive.
[45]. The Union suggests on a close reading of the evidence the Grievor was not insubordinate in attending work on November 9, 2021 without first conducting the rapid antigen test and submitting the results because there was a problem with the portal used to submit the results. I fail to see how a problem with the portal would relieve the Grievor of the obligation not to attend work if he was unable first to conduct a test and then submit the results. In any event, as argued by the Employer, the Grievor’s evidence was that there “may” have been problems with the portal; by contrast the evidence of Mr. Samac was he was not aware of any problems with the portal and the Grievor did not advise him of any at that time. I am not, therefore, persuaded that there was a problem with the portal on November 9, 2021.
[46]. I turn to the question of whether I should exercise my discretion to reduce the disciplinary sanction which the Grievor received. I see no compelling reason to do so. The Grievor breached the Directive’s requirement to test and report results prior to attending work on four separate occasions: November 9, 10, 12 and 16, 2021. He also breached the Directive’s requirement not to attend work having not tested and reported the results on two separate occasions: November 9 and 10, 2021. The eight day suspension he received was not unreasonable for this conduct. During the allegation meeting, and in response to the Employer’s Statement of Material Facts, the Grievor claimed confusion about whether he was required to test on the days in question. However, during the hearing he acknowledged that he was required to do so. I also place little to no weight on the Grievor’s alleged health concerns as a mitigating factor with respect to his failure to test. They were raised for the first time within the context of the hearing of these grievances, more than 2 years and nine months after the fact. They appear, at best, self-serving.
[47]. For all of the foregoing reasons, the grievance is denied.
GSB File No. 2022-4338 / OPSEU File No. 2022-0526-0017
[48]. This grievance seeks reimbursement of costs allegedly incurred by the Grievor in purchasing rapid antigen tests. Paragraph 9 of the Employer’s Statement of Material Facts, which I abbreviated above, is relevant to this grievance, as is the Grievor’s response to that paragraph, which I have not previously reproduced. Together they read as follows:
- The Employer provided employees with rapid antigen COVID-19 testing kits for 90 days, from November 1, 2021, to January 31, 2022. At the relevant times for this grievance, the Employer was providing COVID-19 testing kits to employees who were self-administering tests.
[The Grievor disputed the accuracy of this statement, stating:
The grievor believes that the covid tests were provided beyond that above-noted date as well. The grievor believes he was suspended Jan 16, 2022 for 8 days. The grievor was concerned he would not have rapid antigen test to come back to get after Jan 31, 2022. While he was away from work the Employer extended the availability window to beyond January 31, 2022. The grievor was not made aware of this until after the fact. The grievor went and purchased his own at-home testing kits. He could have received free kits from the Employer. Grievor’s position is that the Employer should reimburse him. Grievor thinks that the Employer extended the availability of the tests for free pickup until April 2022.]
[49]. The September 29, 2021 Memorandum advising OPS Staff of the Directive stated in part:
Rapid antigen tests will be provided to unvaccinated employees for 90 days. After the 90-day period ends, employees will need to arrange for and obtain tests at their own expense. The testing program will begin for most employees on November 1.
[My emphasis.]
[50]. In his Declaration, Mr. Samac agreed that the 90-day period was extended. This is confirmed by an email dated January 25, 2022, sent to the employees in the Grievor’s workplace, which advised them: “Rapid antigen test kits will continue to be provided to impacted employees after January 31, 2022 until March 18, 2022.” The email was sent while the Grievor was off on suspension. There is no evidence that he saw it when he returned to work on February 1, 2022. The Grievor testified he was not advised by the Employer the window during which it would be handing out free test kits had been extended. For the purposes of this decision, I assume he was not aware of this change in policy.
[51]. The Union relies upon CUPE v. City of St. Thomas, 2022 CanLII 126105 (ON LA) (Sheehan). In that case, the employer also introduced a policy during the COVID pandemic which required employees either provide proof of vaccination or complete regular antigen testing. The memo to employees introducing the policy indicated that the employer would pay the fees associated with testing until December 31, 2021 and thereafter anyone who declined to provide proof of vaccination would be responsible for the cost of testing. The requirement for testing was rescinded on April 1, 2022 as a result of various provincial orders being lifted. The Union grieved the fact employees were responsible for the cost of testing from January 1, 2022 until April 1, 2022.
[52]. Arbitrator Sheehan allowed the grievance. He distinguished cases holding that entitlement to a monetary benefit must be set out in the collective agreement, stating:
At the end of the day, this is not a "monetary benefit" case but rather a classic "KVP" case. The Employer utilized its legitimate management right to unilaterally introduce the Policy during the life of the collective agreement. Accordingly, the requirement set out in Lumber & Sawmill Workers’ Union, Local 2537 v KVP Co., supra, that the Policy satisfies the criteria of being reasonable is what is at the heart of this dispute.
It is accepted that key aspects of the Policy represented a balancing of the interests involved and support the Employer’s assertion that the Policy was on an overall basis reasonable in nature.… Also, in terms of an evaluation of the reasonableness of the Policy, consideration has been given to the fact that the Employer covered the cost of such testing for employees from its effective start date of November 22, 2021, until December 31, 2021.
…. At the same time, however, the imposed costs must be reasonable given all the relevant circumstances. Against that backdrop, it is found that the aspect of the Policy requiring employees to cover the full cost of the Rapid Antigen testing subsequent to January 1, 2022, was unreasonable.
In the result, he concluded that it would be “just and appropriate” for the employees to be reimbursed for 50% of the costs which they had incurred.
[53]. The basis for Arbitrator Sheehan’s award was his assessment of the employer’s policy for reasonableness and more specifically his conclusion that its requirement that employees pay the full cost of testing was unreasonable. He found his jurisdiction to do so under the management rights clause. He concluded that having the employees pay 50% of the cost of testing would be ”just and appropriate” and ordered them reimbursed for the difference.
[54]. Assuming without deciding that this approach is sound, it has no application to the facts before me. Rather, as the Employer points out, at the time the Grievor chose to purchase the test kits, the Directive did not require employees to pay any of the cost of testing. Instead, as stated by the January 25, 2022, email, the Employer was continuing to provide free test kits. The Employer’s policy did not impose a substantial cost on the Grievor: it imposed no cost at all. As the policy cannot be said to be unreasonable in that respect, it cannot serve as a basis for ordering the Grievor to be reimbursed.
[55]. If one accepts the Grievor’s claim that he was not aware of the change in policy and incurred an expense as a result, this may appear harsh. The Grievor, however, is the author of his own misfortune. A simple inquiry on his part as to whether or not the Employer continued to have free test kits available would have allowed him to avoid the cost. In any event, the Union having pointed to no other provision of the collective agreement which would give rise to the monetary entitlement sought by the Grievor, the claim must be dismissed.
[56]. For all of the foregoing reasons, the grievance is denied.
Disposition
[57]. For the reasons stated, all of the grievances are denied.
Dated at Toronto, Ontario this 7th day of November 2024.