Ontario Public Service Employees Union (Titley) v. The Crown in Right of Ontario (Ministry of Public and Business Service Delivery), 2024 CanLII 52279

GSB# 2021-2970; 2021-2971; 2021-4608

UNION# 2021-4107-0003; 2021-4107-0004; 2022-4107-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Titley)

Union

• and -

The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)

Employer

BEFORE

Kim S. Bernhardt

Arbitrator

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Senior Grievance Officer

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 6, 2022; June 8, September 11 and 14, November 30, 2023; January 16, 2024

Decision

A. INTRODUCTION

1This case involves three grievances filed by the Grievor, Lucie Titley [LT] regarding her non-compliance with the Employer’s October 1, 2021 Safe Workplace Directive (the Directive or the SWD], which required employees to attest that they were fully vaccinated against COVID-19 or have a valid medical exemption from vaccination and undergo rapid antigen testing [RAT]. If not, the employee is to complete an educational program and undertake rapid testing prior to entering the workforce.

2LT disagreed with the Directive’s requirements and consistently refused to attest, provide a medical exemption, or take a rapid test. As a result, as outlined in the Directive, she was put on a Leave of Absence without pay (and filed the November 22, 2021 grievance, which also included her concerns in general about the Directive), then she received a 20-day suspension (which she grieved on November 29, 2021), and ultimately was terminated (which she grieved on February 24, 2022).

3While the Union states that it was not challenging the SWD or it’s requirement for RAT, the Union’s position is that the application of the Directive, in its disciplinary approach, was unnecessary as a less harsh approach could have sufficed for the Employer’s purposes. The Union also claims that the Employer’s alleged behavioral reasons for terminating the Grievor were not clearly outlined or discussed with either the Grievor or the Union and were not substantiated by the evidence.

4The Employer maintains that the Directive was clearly outlined and fairly applied to all employees and was necessary for a safe working environment as the Grievor was a front-line worker who interacted with other employees and the public. The Employer argues that the Grievor was given many opportunities to outline her position and to comply. However, in the Employer’s view, not only did the Grievor fail to comply, but her behavior in resisting the Directive was uncooperative; such as when she was asked to leave the office and did not do so immediately, and that she communicated with her supervisor in a manner that made the supervisor feel threatened. In the Employer’s view, the behavioral concerns created a breach of trust that the employment relationship could not be repaired, and that these behavioral concerns were known to the Grievor and the Union. While the non-compliance with the SWD was sufficient to warrant termination, the Employer’s view is that the Grievor’s behaviour in response to the Directive added to the reasonable decision that she be terminated.

5For the reasons outlined below, in particular the Grievor’s failure to comply with the Directive, the grievances are dismissed. The termination stands.

B. BACKGROUND

6Most of the facts associated with the matter were not in dispute and the parties submitted a Partial Agreed Statement of Fact [ASF], copied below. The ASF, along with the Joint Book of Documents [JBD] that accompany it, and witness testimony, serve as the evidentiary record in this matter. The four witnesses who were called to testify were: Kelly Gordon [KG], A-Manager for Alexandria, Cornwall, Hawkesbury Service Ontario offices and Karen Harry [KH], Director East Retail Office Branch, Customer Care Division, Service Ontario, MGCS for the Employer, and the Grievor [LT], and Jamie Brault-Larocque [JBL], OPSEU Local 4107 President for the Union.

7The context for the dispute was the March 11, 2020 World Health Organization declaration of COVID-19 as a global pandemic, and the subsequent Ontario Government’s declaration of a province-wide state of emergency. As a part of their response to the pandemic the Employer introduced the SWD and as of October 1, 2021 this Directive required that non-vaccinated employees without a medical exemption were required to participate in an educational program and undergo regular rapid testing prior to entering the physical workplace.

8The ASF is as follows (the attachments are not included):

Partial Agreed Statement of Fact

OPSEU (Titley) v. Crown

GSB Nos. 2021-2970, 2021-2971, 2021-4608

1. Lucie Titley (“Grievor”) was a Customer Care Representative at the Hawkesbury Service Ontario location. Her continuous service date was July 4, 2017. She was on a fixed-term, part-time contract with guaranteed minimum hours of 18.13 hours per week at an hourly rate of $27.90. Her contract had been continually renewed since 2017.

2. Her contract was terminated on February 23, 2022 per the letter attached as Appendix A. Her contract was otherwise due to expire on March 31, 2022 and therefore she would have been paid at least $2,529.16 had she completed the term of her contract, which is attached as Appendix B.

3. 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 C – “Directive”).

4. Pursuant to the Directive, all employees were required to either (1) attest that they were fully vaccinated against COVID-19, or (2) advise of a valid medical exemption for not being vaccinated and undertake rapid testing, or (3) complete an education course and undertake a rapid test prior to entering the workplace.

5. The Grievor did not attest to being vaccinated and was considered to be unvaccinated under the Directive. The Grievor did not advise the Employer of a medical exemption for being vaccinated. As such, she was required to complete a COVID-19 vaccination educational program and mandatory testing and provide proof of a negative test every 48 hours prior to entering the workplace.

6. An email reminder of this nature was sent to her on November 2, 2021, attached as Appendix D.

7. On November 5, 2021, the Grievor informed her manager that she had not and would not be retrieving the testing kits as she would not be submitting to the testing requirements. She was placed on an unpaid leave (see email attached as Appendix E). The Employer alleges that she was uncooperative when told to leave the office (see Appendix F). The Grievor disputes that she was uncooperative when told to leave the office.

8. On November 9, 2021, the Employer sent the Grievor notice of an allegation meeting (Appendix G). The Grievor responded on the same day by sending her Manager the two letters attached as Appendix H. The first letter outlined that she would not be complying with the Directive as she does not provide consent to any type of COVID-19 testing. The second letter addressed her rebuttal to the Employer's assertion that she failed to leave the workplace on November 5, 2021 when instructed.

9. On November 15, 2021, an allegation meeting was held. The Employer’s notes taken by the HRA are attached as Appendix I.

10. The Employer established the Safe Workplace Committee (the “Committee”) to help facilitate consistent, enterprise-wide guidance of the Directive. The Committee first met on September 27, 2021 and last met on June 5, 2023. A purpose of the Committee was to allow managers across the OPS to refer issues regarding the Directive, including related to non-compliance. A “Guidebook for HR Practitioners” was developed by the Employee Relations Branch, reviewed by the Committee and approved by the Centre for Public Sector, Labour Relations and Compensation. (See excerpt from Guidebook at Appendix J).

11. The Employer’s position is that it determined that there were no mitigating circumstances and accordingly issued the Grievor a twenty (20) day suspension on November 29, 2021 (attached as Appendix K). The Union’s position is that the Employer did not appropriately consider the mitigating factors such as the grievor’s clean disciplinary record, length of service, past satisfactory performance in her role and that the grievor genuinely believed that the employer was breaching her privacy and bodily integrity.

12. On December 16, 2021, a letter outlining expectations upon return to the workplace was issued to the Grievor (attached as Appendix L).

13. On December 20, 2021 the Grievor sent an email to her manager advising that upon her return from suspension she would not undertake regular rapid antigen testing. This email is attached as Appendix M.

14. On December 23, 2021 the Employer sent the Grievor a letter advising that, effective December 29, 2021 she would be placed on a further unpaid unauthorized leave pending an allegations meeting to be held on January 5, 2022. This letter is attached as Appendix N.

15. On January 5, 2022 an allegations meeting was held. During this meeting, when asked whether she would comply with the requirements under the Directive going forward, the Grievor indicated that she would not. The meeting notes from the Manager and HRA are attached as Appendices O and P.

16. On January 17, 2022 the Grievor sent two “cease and desist” letters to her manager and a human resources advisor. These letters are attached as Appendices Q and R.

17. Following the termination of her contract on February 23, 2022, the Grievor sent the letter dated March 7, 2022 attached as Appendix S to her Director.

18. A letter from the Chief Medical Officer of Health advising of a revocation of the Directive was issued March 1, 2022, and the Directive was revoked on April 1, 2022. The letter is attached as Appendix T.

19. The Grievor has filed three grievances: the first dated November 22, 2021 regarding the leave without pay and the Directive generally; the second dated November 29, 2021 regarding the 20-day suspension; and the third dated February 24, 2022 pertaining to her termination. These are attached as Appendices U, V, and W respectively.

20. The Union is not challenging the reasonableness of the requirement to submit to rapid testing per the Directive.

C. ISSUES/ARGUMENTS/FINDINGS

9There are two issues to be determined:

• Did the Grievor’s actions warrant discipline?

• If so, was the discipline imposed appropriate?

EMPLOYER’S POSITION

10The Employer states that the Grievor was terminated for cause, primarily for not adhering to the Directive, as well as for her behaviour associated with her non-compliance. At the time of termination, on February 23, 2022, there were five weeks remaining on the Grievor’s fixed term contract.

11There was no dispute between the Employer and the Union regarding the reasonableness of the RAT requirement in the Directive, or that the Grievor, who worked directly with the public, refused to comply with the Directive.

12The Employer asserts that the Grievor’s stated rationale for her refusal, that it was discriminatory to require non-vaccinated employees to take a RAT when vaccinated employees did not have to be tested, was unreasonable (the Employer’s counsel referred to the Grievor’s view as “deluded”). The Employer paraphrased the Grievor’s view as being that while she now understood that being unvaccinated was not a recognized ground of discrimination, but that by pursuing this grievance she could make a small contribution by changing the Charter of Rights to include vaccination status, as she understood that the Premier of Alberta was considering.

13In the Employer’s opinion, the Grievor knew that termination would be highly likely as she had been formally notified, been disciplined through an unpaid LOA and suspension. The Employer argues that the Grievor made an informed choice and that what she experienced was not discrimination but a consequence of her choice, and she was now asking the Board to undo the consequences of her decision.

14In support of their position that the Grievor’s position of being discriminated against was incorrect (and as they called it, “offensive”), the Employer points out that the Ontario Human Rights Commission’s [OHRC] Policy Statement on COVID-19 [OHRC Policy] is clear in stating that “While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code”.

15The Employer asserts that the HRTO’s case law supports their position that it is a choice, not a creed, not to get vaccinated and that the RAT requirement is not a breach under the Code on the grounds of creed (no specific grounds were asserted). They refer to the decision in Oulds v Bluewater Health [Oulds], 2023 HRTO 1134 as establishing the OHRC’s and the Tribunal’s view that “the concept of autonomy and individual choice (and its application, in this case, to choose not to receive this specific Covid-19 vaccination) does not meet the definition of creed”.

16The Employer disputes that the Grievor was ever going to take a RAT, and her assertion that she would have complied if testing was required of all the employees and not just the unvaccinated. In the Employer’s view, as outlined by their witnesses, the Grievor stated that she had never taken a COVID-19 test in her life, did not comply with other COVID-19 related safety protocols in the office, nor understand what a RAT was, was given her references to DNA and protein and that only the test results (not the test samples) were required to be provided to the Employer. The Grievor concurred under cross-examination that she had never read the instructions for taking the test. As a result, it was the Employer’s opinion that the Grievor was never going to take the test as she clearly stated from the start that she was not going to comply with the Directive.

17The Employer states that they acted in accordance with the Guidebook for HR Practitioners [the Guidebook] that was developed to facilitate consistent, enterprise-wide guidance of the Directive, including issues related to non-compliance, as outlined in paragraph 10 of the ASF. The ASF also describes that the Grievor received the notifications and attended the meetings that were held in conjunction with her unpaid LOA, 20-day suspension, and eventual termination, as outlined in the ASF (Appendices K, L, and N). In accordance with the Grievor’s continued refusal to comply with the Directive her contract was terminated for cause on February 23, 2022, according to the Employer.

18Contrary to the Grievor’s view that her reasons for her non-compliance were not properly considered, the Employer asserts that her rationale was well known to the Employer and was discussed at the meetings as was outlined in the notes that were included as Appendices L and I of the ASF. Furthermore, the Employer asserts that the Grievor was asked if there were any mitigating circumstances to her not testing, and she did not assert any, and instead referred the Employer back to her letter of November 9, 2021, which did not contain any mitigating circumstances.

19Throughout the process of sending notifications to and having meetings with the Grievor, the Grievor consistently confirmed that she was not going to comply and referred to her letter of November 9, 2021 which stated that she would not comply as it was a breach of her right to maintain her “bodily autonomy” and violated her human rights and Charter rights as the “scientific evidence” was that “vaccinated persons can still get and transmit COVID-19 despite their inoculation” and so the Employer was discriminating against the unvaccinated by subjecting them to the RAT requirement. The Employer argues that rather than comply with the reasonable Directive, the Grievor’s response demonstrated her lack of cooperation by erroneously claiming that the Employer would be “liable for legal action” and that “the Ontario Public Service is in breach of various federal and provincial legislations, as well as case law and their own internal procedures with the recent COVID-19 vaccination and testing mandates”.

20In particular, the Employer, and their witnesses, believe that the Grievor was uncooperative and refused to leave the office during, and subsequent to, the meeting held on November 5, 2021 when she was placed on an unpaid LOA. The Grievor’s Manager, KG, testified that the Grievor’s demeanor at that meeting made her feel “intimidated, scared, fearful, and anxious”. KG contacted Human Resources for advice because the Grievor refused to leave, and the Grievor left only after KG threatened to call security. The Grievor sent a letter rebutting the allegation that she refused to leave the meeting.

21As the process progressed from the unpaid LOA to the 20-day suspension to the termination, given the Grievor’s consistent refusal to comply with the Directive, it is the Employer’s view that the Grievor’s unacceptable behaviour escalated. The Employer refers to the meeting notes from January 5, 2022 (Appendix P) during which the Employer states that the Grievor threatened KG by saying that KG would face punishment of a million dollar fine and time in jail, and that the Grievor would hold KG “personally liable”. The Grievor subsequently sent a “cease and desist” letter on January 17, 2022 to KG and the Human Resources Advisor who attended the meeting to follow up on her “warning”.

22It is the Employer’s position that although the Grievor believes what they call “all of this nonsense” and that they recognize that COVID-19 was a difficult time for everyone, the Grievor’s ongoing behaviour, and her stated lack of regret for any of her behaviour, meant that her termination was reasonable and that she could not return to the workplace. Not only was it apparent to the Employer that the Grievor would react in exactly the same way in similar circumstances, but there had also been a fundamental breach of trust that had destroyed the employment relationship. In the Employer’s view, the Grievor would not see that she had done anything wrong, or take responsibility for her actions, given her statement that she could “forgive” her manager and could continue to work in her same position.

23According to the Employer, because of the rift in the office between employees who were concerned about COVID-19 and those, including the Grievor, who did not agree with the safety protocols, the Grievor could not be returned to the workplace given her strongly stated views. For example, in January 2022 a “Notice” was posted on an outside door of the office calling for a stop to “COVID-MANDATED vax racism…recall, don’t fire…unvaccinated lives matter…guilty of vax racism”. While the Employer does not assert that the Grievor had anything to do with the poster, their view was that it indicated the level of discord that existed in the office around the topic and suggests that the office’s atmosphere would be even more “toxic” if the Grievor were to return to work, in the Employer’s view.

24The Employer rebuts the Union’s arguments that they had not identified that the Grievor’s behaviour was a reason for her termination, or that there were lesser penalties to accomplish their goal. While there were some employees in the office that were sympathetic to the Grievor’s viewpoint (who was the only employee who refused and was terminated as a result), all others eventually followed the protocol and underwent the RAT.

25The Employer argues that while the failure to follow the Directive was sufficient grounds for the Grievor’s termination, the Grievor’s behaviour was also a factor as was clear from the February 23, letter of termination, which referenced the Grievor’s previous emails and stated that KH, the Director who wrote the letter of termination, had given full consideration of the facts, employment history, all other circumstances, and mitigating factors. The Employer asserts that this covers enough ground to include the Grievor’s behaviour as a factor in the termination, even though the Employer’s main submission is that the Grievor’s failure to follow the Directive gave sufficient grounds for her termination.

26The Employer cited case law to establish that the arbitral jurisprudence had determined that in the context of the COVID-19 pandemic, the requirement for employees to undergo RAT was reasonable. Amongst other cases, the Employer cites Arbitrator Murray’s finding in Ontario Power Generation and The Power Workers Union, Re OPG-P-185 [OPG] November 12, 2021, that the RAT, which had been endorsed by the Chief Medical Officer of Health and other appropriate authorities, was safe, effective, and reasonable, and dismissed the grievance. Similarly, in Lakeridge Health v CUPE, Local 6364 [Lakeridge Health], 2023 CanLII 33942 (ON LA), Arbitrator Herman found the mandatory vaccination policy, which placed unvaccinated employees on mandatory LOAs, and subsequently terminated those who remained unvaccinated, was reasonable.

27From Central West Local Health Integration Network v Canadian Union of Public Employees, Local 966 [Central West LHIN], 2023 CanLII 58388 (ON LA) the Employer comments that Arbitrator Goodfellow is one of the arbitrators who started to show their impatience with challenges to mandatory COVID-19 vaccination requirements given the tone of the decision in denying the grievances. Similar to the current case, the Employer adopts Arbitrator Goodfellow’s view that there is no duty to accommodate those who chose not to comply with a reasonable workplace rule (like mandatory vaccination during a pandemic), as reasonable rules do not have to accommodate personal preferences or opinions if there are no religious or medical grounds for non-compliance.

28According to the Employer, the first GSB case regarding the RAT was Arbitrator Anderson’s decision in OPSEU (Wilson) and The Crown in Right of Ontario (Ministry of the Solicitor General), GSB# 2021-2596 [Wilson], August 8, 2023. From that decision the Employer refers to the Arbitrator’s finding that the 20-day suspension and subsequent termination for not following the Directive were reasonable and the termination was upheld.

29The Employer relies upon the decisions in Wilson, Central West LHIN, Lakeridge Health, and OPG as establishing that discipline is the appropriate response for employees who do not adhere to a reasonable policy, such as the COVID-19 safety measures including vaccination and RAT. The Employer cites with approval Arbitrator Murray’s comment from OPG:

The Company has made it clear that termination of employment at the end of the 6-week period will typically occur. It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will likely will [sic] have made a decision to end their career with this Company.

30In addition to the Grievor’s clear and numerous refusals to take the RAT or comply with the Directive, the Employer argues that the Grievor’s behaviour during and subsequent to the meetings regarding her refusal to comply with the Directive militate against any reduction of the unpaid LOA, 20-day suspension, or the termination, and established just cause for the termination. In her letter of November 9, 2021, the Grievor states “I am not going to consent to any type of COVID-19 testing that the Ontario Public Service is mandating. I do not give my informed consent” and then states that the OPS is “targeting” and “discriminating” against unvaccinated employees “in breach of various federal and provincial legislations, as well as case law and their own internal procedures”. During the January 5, 2022 meeting, the Grievor restated that she would not take the RAT and told her manager and the Human Resources representative (as per their notes):

Discriminatory practise to continue to employ any individual to make distinction on prohibited ground of discrimination. This is a punishable offense and the punishment is a fine-exceeding 1 mill,. or 5 years in jail, or both. These are serious criminal code offences. Interfering with gainful employment is a volition of charter…It is our duty to be aware of this. I must inform you, Kelly and Kirstyn, that if you continue to enforce this, and persist in interfering with my rights for gainful employment, and supporting this unconstitutional directive, losing my employment or being suspended without pay, I will hold personally liable for any loss of income, damages, and or any injury I suffer as a result of your actions. You are personally not protected under any directive, act or statute. This warning is not for you in the capacity of employment. It is a warning as a citizen of this nation. I take it that you’re not aware that you are committing a criminal offense, it is unethical and immoral. If you continue to act on the orders you are given, and continue to discriminate against me and interfere with my right to gainful employment, I will be holding you, Kelly Gordon and you, Kirstyn De Luca, personally liable. You have been warned.

31The Employer asserts that on January 17, 2022 the Grievor continued to send threats as her “Cease and Desist” letter of that date stated:

This serves as documentation of a pattern of harassing activities that began on November 5th, 2021. This letter is notice to you that you must cease and desist these activities against and towards me…If you do not cease and desist interfering with my guaranteed rights by supporting the OPS Covid-19 directive, under threat of losing my employment or being suspended without pay, I will hold you personally liable for any loss of income, damages and/or any injury I suffer as a result of your actions. You are personally not protected under any Act, Order, Statute or Directive that is in violation of the Canadian Rule of Law, Constitution and Charter of Rights and Freedoms.

32In addition to the written refusals to comply, the Employer refers to the testimony of KG and KH that the Grievor’s comments and behaviour during the November 5, 2021 meeting were aggressive and took a toll on KG who felt “intimidated, scared, anxious, hurtful, and fear” because of the Grievor’s comments. The Employer contends that managers should not be subjected to this kind of behaviour which was “beyond acceptable”.

33In support of their position that the Grievor’s behaviour warranted termination and destroyed the working relationship the Employer cited cases where employees with long-term, clean records had their terminations upheld at arbitration for uttering similar threats of intimidation against their managers, especially when the grievors showed no remorse for their behaviour, and the Grievor in this case showed neither remorse nor accepted any responsibility for her behaviour. See: Hendrickson Spring Stratford Operations v U.S.W.A., Local 8773 [Hendrickson], 2008 CarswellOnt 8472; U.S.W. v Plastipak Industries Inc. [Plastipak], 2012 CarswellOnt 7659; Versacold Logistics Services v Teamsters Local 419 [Versacold], 2012 CanLII 32808 (ON LA); OPSEU (Martinez) v The Crown in Right of Ontario (Liquor Control Board of Ontario), GSB# 2018-3576 [LCBO], May 27, 2022; TC, Local 230 and St. Mary’s Cement Inc. (Agostino), Re [St. Mary’s Cement] 2018 CarswellOnt 1932; and Kingston (City) v C.U.P.E., Local 109 [City of Kingston], 2016 CanLII 84460 (ON LA), 2011 CarswellOnt 9046.

34The Employer refutes the Union’s and Grievor’s contention that the Grievor was offering “friendly advice” and argued that her statements that the manager would face a million dollar fine, five years in jail, that the manager had been “warned”, and would be held “personally liable” could be compared to the grievor’s comments in the Versacold decision. In Versacold, the grievor’s threat that the manager should “watch both ways before crossing the street, wouldn’t want anything bad to happen to you”, was found not to be “friendly advice” and the grievor, who had nine years of service, was terminated.

35In summary, the Employer asserts that the Grievor’s termination was warranted by her ongoing refusal to follow the health and safety requirements of the COVID-19 Directive, that the Grievor’s subsequent behaviour and lack of remorse added to the legitimacy of her termination and gave reason not to substitute any lesser penalty. There was nothing to indicate that the Grievor would comply with the Directive if she was returned to work. As a result, the Employer requests that the discipline, including the termination, be upheld and the grievances should be dismissed.

UNION’S POSITION

36The Union confirmed that the facts and issues are not in dispute, and they are not going to assert a violation of any ground under the Code or that there was any discrimination under the Code.

37While the Union agrees that the RAT requirement under the Directive is not a problem, the Union takes issue with the application of discipline to enforce the Directive. In the Union’s view the Employer’s Guidebook for dealing with employees who did not comply with the Directive amounted to an automatic penalty being imposed without mitigating factors being considered. It is the Union’s position that while placing the Grievor on an unpaid LOA was appropriate, they dispute that a punitive disciplinary approach was necessary to meet the Employer’s requirements. The Union argues that the Employer could have placed the Grievor on an unpaid, indefinite LOA as an alternative. As the requirement was removed by March 1, 2022, such a LOA would not have been lengthy.

38The Union disputes the allegations made in the Employer’s 20-day suspension letter of November 29, 2021 about the Grievor behaving aggressively towards her manager [KG] during the meeting held on November 5, or that the Grievor challenged her manager’s authority and was insubordinate by refusing to immediately leave the premises on November 5, 2021.

39It is the Union’s and Grievor’s position, as JB-L the Union representative who was at the meeting concurred with, that the Grievor was not aggressive, but polite and firm in refusing to consent to taking the RAT and just continued to refer to her previously outlined reasons for not taking the test. As the Grievor outlined in her November 9, 2021 letter of response, she had not refused to leave, but was seeking clarification about what it meant to be placed on an unauthorized unpaid LOA. When the Employer representatives at the meeting could not provide the answer, she and JB-L excused themselves and went to the office kitchen to call a Union staff representative for information and advice. While on the telephone, the manager came into the room and told the Grievor that if she did not leave immediately the “police” would be called. In her testimony the manager stated that she had meant to say security, not the police. The Grievor left after this, with her colleagues asking her what had happened as she left.

40The Grievor and the Union contend that KG’s threat to call the police was unnecessary as the Grievor had worked there for six years without there being any issues, and that KG acknowledged that the Grievor had been a “good and loyal” employee up until the COVID-19 protocols were put in place. The Grievor testified that KG was a nice person, and that both she and the Grievor were compassionate people. The Union asserted that the Grievor’s comment regarding “forgiving” the Employer were in the context of her comment to KG that she hoped KG would “forgive me, I was fighting for something”.

41The Union refuted the Employer’s suggestion that the negative impact on the workplace should prevent any reinstatement of the Grievor. The Union summarized their view of the reasons cited by the Employer as being that there were co-workers who refused to work with the Grievor; the lack of trust between the Grievor and her manager; the animosity between the Grievor and her managers and some co-workers; and the Grievor’s continued refusal to comply with the Directive, or future COVID-19 related policies. In response, the Union asserts that the only co-worker who testified, JB-L , said that she would be happy to work with the Grievor again; that the Grievor thought that any lack of trust or animosity with her managers was not personal but based on their being forced to administer the Directive; that her refusal to accept responsibility for any wrongdoing was a unique circumstance in that she was upholding a firmly held belief; that the Grievor’s demeanor at the hearing had been polite and forthright; and there was no evidence of a lingering poisoned environment in the workplace as incidents such as the signs being posted on the door were long gone.

42The Union did not suggest that KG’s stated feelings of being intimidated, scared, and afraid that someone would follow her home and find out where she lived were not sincerely held. However, it is the Union’s position that KG’s subjective feelings were not reasonably held as the Grievor did not intend to upset KG, but merely was giving her notice that her actions could have legal consequences. The Union noted Arbitrator Anderson’s comment in Wilson that comments of this nature about legal liability and cease and desist orders in the context of applying the Directive should be considered as “arrant nonsense”. On an objective basis, the concerns that KG testified about, such as the risk of going to jail, were not reasonable in the Union’s view.

43The Union objected to what they considered to be an attempt by the Employer to expand the grounds for termination as the Union contends that concerns about the Grievor’s behaviour were not mentioned in the letter of termination, nor was the Grievor given the chance to know about or address the allegations of inappropriate behaviour. In support of their position the Union cites the decision in U.F.C.W., Local 175 v. Waste Management of Canada Corp. [Waste Management], 2009 CarswellOnt 8459 as cautioning against the expansion of the grounds for termination. The Union also referred to the decision in U.S.W.A. v. Aerocide Dispensers Ltd. [Aerocide Dispensers], 1965 CanLII 985 (ON LA), 1965 CarswellOnt 754 as supporting the Union’s position that the Employer should be held to the grounds for termination that they cite.

44Furthermore, the Union argues that in cross-examination that KH, the Director, stated that the reason the Grievor was terminated was her failure to comply with the Directive, although the Union acknowledges that KH might have listed other reasons when questioned under the Employer’s counsel’s re- examination.

45The Union argued that the Employer’s case law regarding unacceptable behaviour should be distinguished from this case given the lack of factual similarity. The Union posits that all but one of the Employer’s cases regarding improper threats involved physical threats, when this Grievor did not make any physical threats. Instead, the Union argued that the Grievor’s comments were an expression of her honestly held beliefs regarding her rights and that they did not indicate that the Grievor had a malicious intent.

46The Union submitted the following case law in support of their position that the termination was unreasonable. In Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v City of Toronto [Toronto Fire Fighters’], 2022 CanLII 78809 (ON LA), Arbitrator Rogers upheld the mandatory vaccination policy, but did not agree that discipline or discharge needed to be the inevitable response to an employee’s failure to comply with the policy. The Union further agrees with Arbitrator Rogers that the balance between an individual’s privacy or bodily integrity and an employer’s health and safety needs could be met by non-disciplinary responses (such as an unpaid LOA). The Union asserts that the case also supports their contention that failing to consider mitigating factors, such as this Grievor’s clean record and previous good work, offend labour relations principles.

47The Union asserts that Arbitrator Misra’s decision in Chartwell Housing Reit (the Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220, UBCJA Policy Grievance #09-09-21 re Mandatory Vaccination Policy [Chartwell], 2022 CanLII 6832 (ON LA) supports their position that each individual’s circumstances need to be considered in deciding any discipline, especially when an automatic termination could be imposed, and that such consideration was lacking in this case.

48The Union distinguishes the decision in Wilson from this case as the facts in Wilson were that the additional reason for termination was the grievor’s abuse of sick time and the fact that the grievor in that case was a Correctional Officer who worked in a congregate care setting (a jail) with heightened safety measures given the interaction with the vulnerable prisoner population. In contrast, the Union asserts that this Grievor works behind plexiglass while serving the public. The Union states that Wilson did not involve the same requirements as everyone, vaccinated and unvaccinated employees, were subjected to daily screening, whereas only the unvaccinated were required to undergo the RAT in this workplace.

49The Union proposes that the grievance be upheld because the Employer should not have taken a punitive approach as it was unnecessary. In the Union’s view, there was no insubordination or misconduct on the part of the Grievor, and no opportunity for the Grievor to address such allegations as they were not stated in the letter of termination. Instead, the Employer should have considered the Grievor’s history of being a good worker, and her reasons for not taking the RAT, and placed her on an indefinite unpaid LOA.

ANALYSIS

50The issues are first, whether there was cause to discipline the Grievor, which involves determining whether the alleged behaviour concerns should form part of the determination. Secondly, if there was cause to discipline, should the termination be altered to a lesser discipline.

51I agree with the cautions against expanding the grounds for discipline raised by the adjudicators in the Waste Management and Aerocide Dispensers decisions, as stated at paragraphs 30 and 31 in the Waste Management decision:

On my assessment, the Employer is here attempting to enlarge or broaden the grounds for termination. I do not find that the Union or Grievor were unaware of or lack the opportunity to respond to the Employer’s concerns about the Grievor’s behaviour… The fact remains however that, despite the information it already had, the Employer did not clearly put the Union on notice of its intent to rely on the existence of some commercial enterprise until the first day of hearing in this matter. I conclude that the Employer should have given earlier notice of the precise grounds being relied on to support the termination and of its intent to call the witnesses in question. If this issue had been raised at the time of termination, during the grievance procedure or through the particulars, I would have been more inclined to accept that the witnesses have information connected to the "findings" of the investigation and that their evidence should be received in this proceeding. Emphasis added.

52However, it was clear in the current case that the Union and Grievor were well aware of the Employer’s concerns, which were first raised in KG’s November 9, 2021 letter to the Grievor which stated:

On November 5, 2021, I met with you to schedule a date & time for you to pick up your test kits. You advised me at that point that you had not picked them up nor do you have any intention of picking up your test kits. Further to this, when directed to leave the workplace, you refused. As an OPS employee, you have not met the requirements set out in the Ontario Public Service COVID-19 Safe Workplace Directive. As a result, you are being placed on an unauthorized unpaid leave of absence at this time. Emphasis added.

53The Grievor sent her rebuttal to the allegation that she failed to leave the workplace on November 5, 2021 stating:

In regards to an email received from Kelly Gordon, Manager Customer Care Division/East Retail Office Branch dated November 9, 2021 stating that I refused to leave the workplace on November 5th, I would like to make it very clear that this was not the case… [continues with Grievor’s view of the meeting, as was previously outlined].

54The Employer again raised their concerns about the Grievor’s behaviour in their November 29, 2021, 20-day suspension letter:

On November 5, 2021, your manager approached you to determine a suitable time for you to retrieve your testing kits. You informed her that you had not and would not be retrieving the testing kits as you would not be submitting to the testing requirements. Given your non­compliance with the Directive, you were advised that you would be placed on an unauthorized and unpaid leave effective immediately. You had a further discussion at approximately 2:00pm, with your manager, union representative, Jaime Brault Larocque, and Kirstyn De Luca, HR Advisor. The same information was reiterated, and you were subsequently directed to leave the workplace immediately.

During this second discussion, you became argumentative and challenged your manager's authority. You questioned why the leave would be unauthorized and refused to leave the workplace until you were provided with something in writing.

On November 15, 2021, an allegations meeting was held with you. During this meeting you advised that you were aware of the OPS COVID-19 Safe Workplace Directive. You were asked several questions regarding the requirement to provide proof a negative antigen test, whether you have obtained the rapid antigen test kits and if you intend to comply with the requirements under the Directive going forward. Your response to all of the questions was to refer your manager to the letters that you sent to the Employer on November 9, 2021. The letters you sent outlined that you will not be complying with the Directive as you do not provide consent to any type of COVID-19 testing that the Ontario Public Service is mandating. In addition, when you were questioned about why you refused to leave the workplace, you referred your manager to your second letter dated November 9, 2021, which indicated that it wasn't a refusal to leave, rather, you were seeking clarification on the unauthorized leave.

I have concluded that your actions/behaviour constitute a contravention of the OPS COVID-19 Safe Workplace Directive. In addition, you were also insubordinate to your manager by challenging her authority and refusing to leave the workplace when directed to do so. [Emphasis added.]

55From KG’s and Kirstyn De Luca’s [KDL], Human Resources Advisor undisputed notes of the January 5, 2022 meeting, that also included KH, the Grievor and a Union representative (either JB-L or Lisa Debransky) the Grievor confirmed that she would not comply with the requirements under the Directive, repeated that the Employer was discriminating, and when asked if there were mitigating factors that the Employer should consider responded by stating:

Yes as stated in the letters sent November 9th 2021. Lucie warned Kirtsyn and myself that we are committing a crime by asking/requiring Lucie to be tested based on her constitutional rights. Lucie gave a bunch of statistics about vaccinated/unvaccinated and partially vaccinated. She continued to ask hypothetical questions in which we did not reply. [Emphasis added.]

The second set of notes contains more details;

LT: Are you saying it is the workplace directive and therefore you have to do this? Is it because it is part of the Directive? The reason I need to take an antigen test, is it because of the Directive?

KDL: The Employer’s expectations are clearly outlined under directive. That is the expectation under the Directive.

LT: OPS SWD that came into effective Oct. 2021, they are just that, Directives. Even if you consulted with stake holders, HR, bargaining agents and got it approved by Treasury Board, it is still only a directive. Any directive, any statute, any orders, any laws, must be consistent with the constitution. Nothing can override the charter or pre-charter constitutional rights. I will ask again, would you agree that asking me to antigen test every 48 hrs, but not everyone, is discriminatory, partial unfair and basis [sic].

KDL: Again, we will not be commenting on that.

LT: Well there is no denying that it is discriminatory, and the Canadian Rights Act F201 states that grounds of discrimination refusal of request to undergo genetic test/disclose test, discrimination on the grounds of genetic characteristics. Discriminatory practise to continue to employ any individual to make distinction on prohibited ground of discrimination. This is a punishable offense and the punishment is a fine-exceeding 1 mill,. or 5 years in jail, or both. These are serious criminal code offences. Interfering with gainful employment is a volition [sic] of charter. Another question, Kelly and Kirstyn, if your employer asked you to ask to slap a subordinate across the face bc these are the new OPS Directive, would you do it?

KDL: We’re not answering any questions Lucie.

LT: wouldn’t you just say that you’re doing what you’re supposed to do?

KDL: We will not be responding to any questions and certainly not any hypotheticals.

LT: Of course not, bc you know the law. It is our duty to be aware of this. I must inform you, Kelly and Kirstyn, that if you continue to enforce this, and persist in interfering with my rights for gainful employment, and supporting this unconstitutional directive, losing my employment or being suspended without pay, I will hold personally liable for any loss of income, damages, and or any injury I suffer as a result of your actions. You are personally not protected under any directive, act or statute. This warning is not for you in the capacity of employment. It is a warning as a citizen of this nation. I take it that you’re not aware that you are committing a criminal offense, it is unethical and immoral. If you continue to act on the orders you are given, and continue to discriminate against me and interfere with my right to gainful employment, I will be holding you, Kelly Gordon and you, Kirstyn De Luca, personally liable. You have been warned. [Emphasis added.]

56It is clear from the exchange of letters and the meetings that the parties were well aware of and had discussed the Grievor’s behaviour as a part of the Employer’s concerns, and that the Grievor had provided her views regarding those concerns.

57After the January 5, 2022 meeting the Grievor sent “cease and desist” letters to KG and KDL, again with the same “warning”:

If you do not cease and desist interfering with my guaranteed rights by supporting the OPS Covid-19 directive, under threat of losing my employment or being suspended without pay, I will hold you personally liable for any loss of income, damages and/or any injury I suffer as a result of your actions. You are personally not protected under any Act, Order, Statute or Directive that is in violation of the Canadian Rule of Law, Constitution and Charter of Rights and Freedoms.

58Given this series of events, the general reference in KH’s Feb 23 2022 termination letter was sufficiently clear that the Grievor was being dismissed, in part, because of her behaviour in refusing the RAT:

As an employee of the Ministry of Government and Consumer Services, this conduct is inappropriate and cannot be tolerated. In determining the appropriate response to the substantiated allegations, I have given full consideration of the facts, your employment history, all other circumstances and mitigating factors, and I have concluded that your actions are just cause for discipline. On November 2, 2021 and November 5, 2021, you were advised of the Employers [sic] expectation regarding mandatory rapid antigen testing in the workplace for unvaccinated staff. On November 29, 2021, you were issued a twenty-day disciplinary suspension without pay. In that letter, you were once again advised that it was the Employers expectation that you adhere to the Ontario Public Service COVID-19 Safe Workplace Directive and you were also advised that any further non-compliance may result in further disciplinary action up to and including dismissal.

While the primary reason for the termination was the Grievor’s failure to comply with the Directive, the manner in which she expressed her refusal to comply and disagreement with the Directive was also a part of the decision to terminate. The Grievor was aware of the Employer’s concern, especially as it had been clearly stated in the Employer’s November 25, 2021 letter of suspension.

59I concur with the Employer that the behaviour displayed by the Grievor in response to the enforcement of the Directive was unacceptable. She repeatedly threatened and “warned” her manager and others imposing the Directive that they would be held “personally liable”, sent them so-called “cease and desist” orders, told them that they were in breach of the Charter and discriminatory, which were, in her words, “a punishable offense and the punishment is a fine-exceeding 1 mill,. or 5 years in jail, or both. These are serious criminal code offences”.

60None of these warnings or threats are within the realm of being possible, as the Union acknowledges, and the Grievor has testified that she has come to understand that being unvaccinated is not a ground on which she could base a claim of discrimination.

61Given the fantastical nature of these threats, it is unfortunate that KG took them to heart, to the extent that she testified about being highly anxious, not sleeping, depressed, worried about her family, was worried that she would lose her house, and/or go to jail, wondered if her kids would have to visit her in jail, and had concerns about being followed on her way home and having her home identified. While KG’s concerns were sincere and truly felt, they were not proportionate to the nature of the threats. To borrow Arbitrator Anderson’s phrase in Wilson, in reference to the “cease and desist order”, such threats are “arrent nonsense” and the extent of KG’s upset was unwarranted.

62KG’s upset was also prevalent during the November 5, 2021 meeting, She testified that she was uncomfortable about confronting the Grievor and felt intimidated by the Grievor during the meeting. In KG’s view, the Grievor refused to leave the meeting when asked, and instead retreated with her Union representative to the kitchen and got on the phone. KG perceived that the Grievor was not leaving the workplace, as asked.

63Regarding the Grievor’s behaviour at the November 5, 2021 meeting, there is no evidence of her speaking loudly or in an aggressive tone, so as to intimidate KG. The Union representative who was present stated that the Grievor was “firm” but not rude as she repeatedly expresses her views (there was no evidence called from the Human Resources representative who participated remotely via Microsoft Teams). There was no dispute that the Grievor was seeking clarification of what it meant to be involuntarily put on an “unapproved” LOA, or that the Grievor and JB-L left the meeting and were on a telephone call with the Union when KG told them to leave or security (she mistakenly said the police) would be called.

64Given the testimony of those physically present, along with KG’s acknowledged nervousness and discomfort about the meeting, I cannot find that the Grievor behaved aggressively during the meeting, other than the repetition of the threats/warnings she had been making all along. The Grievor did not leave the building immediately, as requested, but this was understandable as she was seeking clarification from the Union what an “unauthorized” LOA would be, and if it meant that she should not leave the workplace. However, the Grievor did not leave immediately, as requested, and it was unclear from the witnesses whether the reason for the delay was explained to KG. It was clear that KG perceived the Grievor as refusing to comply with her direction to leave immediately.

65Even without the Employer’s concerns about the Grievor’s behaviour the primary reason for her termination was her refusal to comply with the Directive, despite being given many chances to comply. As well, the Grievor was explicit that she would not comply in the future. The refusal to comply with a reasonable Directive was cause in and of itself for discipline, and there are not sufficient mitigating factors to alter the penalty of termination. As Arbitrator Misra found in Chartwell House, the circumstances of each individual needs to be considered in imposing discipline, which they were in this case. The Grievor was asked on numerous occasions if she had any mitigating factors for not taking the RAT, and she consistently referred to her letter of November 9, 2021, which did not refer to any mitigating circumstances, just stated her belief that it was discriminatory requiring the unvaccinated to test, when the vaccinated employees did not have to. The Grievor was informed about the potential consequences of her actions, and what steps would be taken if she continued to refuse. In accordance with the principle of progressive discipline the Grievor was given chances to correct her behaviour and comply but chose not to take the opportunities to take the test.

66The Grievor was on a fixed-term part-time contract that was due to finish about one month after her February 23, 2022 termination. Had she not disagreed with the Directive, it was most likely that her contract would have been renewed as it had been continuously since 2017 and she had previously been viewed as a good worker prior to when the COVID-19 protocols were put in place.

67I adopt the reasoning of many arbitrators in finding that COVID-19 safety protocols were necessary, that those who choose to defy them should be subject to discipline up to and including termination (other than for any Code-related grounds). On balance, the Employer’s safety-related needs outweighed the Grievor’s concern about taking the minimally intrusive requirement of taking a RAT test. In fact, the Grievor testified that she was not objecting to taking the test, but instead felt that everyone should have to take the test, regardless of their vaccination status. In their attempts to have the Grievor reconsider her position and take the test, as her colleagues did, the Employer gave written notices and held meetings with the Grievor, through which she was notified of the possibility of termination. Prior to termination, the Employer placed the Grievor on an unpaid LOA and gave her a 20-day suspension in an attempt to have her comply with the Directive. Instead, the Grievor ignored these progressively severe disciplinary steps, and instead grieved these actions. She was well aware of the consequences, and it was her choice to expose herself to them.

68As stated by Arbitrator Murray in his OPG decision, at paragraphs 23 and 24:

The employees who will be placed on an unpaid leave of absence are refusing to take the necessary and reasonable step of taking a minimally intrusive test that would demonstrate that they are fit to work and do not present an unnecessary risk to their co-workers during a global pandemic that has cost 29,000 lives in this country and at least 5 million world-wide. Given this refusal, the Company is sending them home on an unpaid leave pending completion of the disciplinary process. Unlike other occasions when the Company sends someone home pending potential discipline, in these circumstances, it is completely within the control of the employee to decide when to come back to work. All they need to do is to agree to participate in the Rapid Antigen Testing programme which is designed to reduce the risk they present to their fellow employees by remaining unvaccinated -a test that has been endorsed by the Chief Medical Officer of Health and other appropriate authorities as being safe and effective. I view this as sensible and necessary part of a reasonable voluntary vaccination and testing program.

The Company has given employees who are sent home without pay 6 weeks to consider whether they are willing to partake in the testing regime like so many of their colleagues. I think it is important for them to understand that, in my preliminary view, in the context presented by this global pandemic, when lives of co-workers are at risk, unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers. The Company has made it clear that termination of employment at the end of the 6-week period will typically occur. It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will likely will [sic] have made a decision to end their career with this Company. [Emphasis added.]

69Arbitrator Herman expressed the same view in Lakeridge Health, at paragraph 174:

It is a legitimate response to a breach of the Policy to discipline employees who refused to comply with the reasonable requirement that they be vaccinated in order to protect other employees, patients and Hospital visitors. Employees were not forced to get vaccinated, they were required to get vaccinated only if they wished to continue to work for the Hospital.

70The GSB has recently ruled on this same Directive in the Wilson decision. In the interests of consistency and predictability I am not straying from that decision as there is no compelling reason for me to do so. This is consistent with the often cited GSB practice, commonly referred to as the Blake principle, and there are no manifest errors in Wilson that require me to depart from the GSB’s decision in that case. I disagree with the Union that Wilson is distinguishable on the facts because it involved a Correctional Officer in a congregate setting with vulnerable prisoners, and an additional policy requiring all staff, vaccinated and unvaccinated, to take the RAT test prior to entering the workplace. Wilson, while considering this very same Directive, also involved the additional allegation that the Grievor had tried to abuse his sick time credits, which Arbitrator Anderson found to be “an ongoing refusal on his part to test”. Similarly in this case, the Grievor’s refusal to take the RAT also involved an additional, but related, allegation of misbehaviour.

71In this case, the additional issue involved in the termination was the Grievor’s behaviour, but as Arbitrator Anderson found, at paragraph 83 “the Grievor’s failure to comply with the testing requirement set out in the Directive was insubordination”. The refusal to test was insubordinate on its own, without any other grounds for discipline being necessary.

72Arbitrator Anderson found that a disciplinary response was appropriate, at paragraph 96 he quotes Arbitrator Herman’s statement at paragraph 172 in Lakeridge Health that:

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 [citations not included].

Arbitrator Anderson goes on to conclude, at paragraph 97:

In 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.

73I concur with both arbitrators that a disciplinary response can be imposed for refusal to comply with a reasonable policy that has been unilaterally imposed by the employer. In this case, there was no dispute that the Directive’s testing requirement was reasonable, as the Union concurred, and it is found reasonable in considering the Employer’s health and safety interests against the Grievor’s unsupported views about who should be required to take the RAT, in accordance with the KVP requirement to balance the parties’ interests. The Employer did respond to the Grievor’s insubordination [of refusing to abide by the Directive] with a progressive discipline approach, giving her opportunities to correct her behaviour.

74For these same reasons I must disagree with the Union that a lesser penalty, such as placing the Grievor on an unpaid LOA until the Directive was revoked, would be more appropriate. First, as found in most of the caselaw, the enforcement of a reasonable Employer policy necessarily includes the ability to discipline breaches of the policy (unless it conflicts with any C/A provision). Secondly, the Grievor’s contract had approximately one month left on its term, and while it might have been renewed, as it had been in the past, she made it clear that she would not abide by the requirement to take the RAT prior to entering the workplace, and so there was no way of knowing whether she could have returned had her contract been renewed in March 2022. Thirdly, despite the Grievor’s somewhat astonishing view that she would be able to “forgive” her manager and there would be no problem with her returning to the workplace, it was clear that the Employer would not welcome her back into the workplace after her threats such as her intention to hold them “personally liable”, and the upset that the manager experienced due to Grievor’s conduct, even if the manager’s feelings were not proportionate to the stated threats. Fourthly, as indicated by the Grievor’s position that she could “forgive”, there is no indication of remorse on the part of the Grievor.

75As Arbitrator Goodfellow observes in Central West LHIN:

Nor, in my view, can it reasonably be suggested that placing employees on indefinite unpaid leaves of absence is, in any way, an alternative means of accomplishing the goals and objectives of the policy. The goal of the policy is to keep employees safe and working; it is not, as the Employers highlighted here, to keep employees safe and not working…

The disciplinary aspect of the policy was coercive and it was meant to be. The goal was to achieve compliance.

76As already quoted, Arbitrator Stout’s observation in OPG summarizes why this Grievor’s request that the consequences of her non-compliance should be altered is untenable:

It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of employment upheld at arbitration. Effectively, employees who refuse testing will [sic] likely will have made a decision to end their career with this Company. [Emphasis added.]

77While her clean disciplinary record, sincerely held views, and good work record are mitigating factors, on balance they do not outweigh the Grievor’s conduct and the Employer’s implementation of the Directive in the interest of maintaining a safe and healthy workplace during an unprecedented pandemic.

DECISION

78For the reasons outlined, the three grievances involving the Grievor’s 20-day suspension, unpaid LOA, and termination are all dismissed.