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Labour (Ont) - Discipline. Humber River Health v. Teamsters Local Union No. 419 [COVID]
In Humber River Health v. Teamsters Local Union No. 419 (Div Ct, 2025) the Divisional Court dismissed an employee's JR, here from Arbitrator's grievance-supporting findings that the employer "terminated their employment for cause in February 2022 for failing to comply with Humber’s mandatory vaccination policy issued during the pandemic".
The court held that the employer overreached in discipline by terminating employees for not receiving the COVID vaccination, here where it could have put them on unpaid leave:[2] The Arbitrator found that Humber’s mandatory vaccination policy was reasonable and its enforcement a legitimate exercise of management rights. Nevertheless, the Arbitrator applied a general principle regarding medical consent rights reached in a different context to find that a hospital worker’s refusal to provide proof of vaccination during the COVID-19 global health pandemic can never form the basis of a disciplinary response by the employer because it engaged the employees’ medical consent rights. The Arbitrator further found that the terminations could not be justified on non-culpable grounds because permitting the Grievors to remain on an unpaid leave of absence would have no meaningful impact on Humber and there was no basis to conclude at the time of the terminations that the Grievors would not be able to return to work in the foreseeable future. Ultimately, the Arbitrator’s conclusion was that Humber could not terminate the Grievors’ employment on disciplinary or on non-disciplinary grounds.
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[30] The seminal cases for the approach to take in determining the reasonableness of an employer’s policy to which it attaches disciplinary consequences are Re Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co, 16 L.A.C. 73, 1965 CanLII 1009 (“KVP”), and the post KVP case of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458 (“Irving”).
[31] A KVP case is one in which an employer adopts a workplace rule to which it attaches disciplinary consequences. KVP holds that in order for the rule to be relied on as a basis for discipline, certain requirements must be met. One of those is that the rule must not be “inconsistent with the collective agreement”; another is that it must be “reasonable”: Central West LHIN v. CUPE, Local 966, 2023 CanLII 58388 (ON LA), at para. 10) (“Central West”).
[32] In Irving, the employer policy at issue contained a universal random alcohol testing component, whereby a small percentage of employees in safety sensitive positions were to be randomly selected for unannounced breathalyser testing over the course of a year. A positive test result for the presence of alcohol attracted disciplinary action, including dismissal. Failure to submit to testing was grounds for immediate dismissal. The majority of a labour board found the policy unjustified when weighing the employer’s interests in random alcohol testing as a workplace safety measure against the harm to employees’ privacy interests. The Supreme Court of Canada ultimately upheld the board’s determination as reasonable.
[33] The application of Irving involves a balancing of interests in determining reasonableness of the employer’s policy which requires labour arbitrators to assess things such as “the nature of the employer’s interests, any less intrusive means available to address the employer’s concerns, and the policy impact on employees”: Irving, at para. 27. The impact on employees’ privacy interests, including their interests in personal autonomy and bodily integrity, forms part of the assessment.
[34] Employer COVID-19 mandatory vaccination policies have now been the subject of many arbitral awards. All have applied KVP. Most have done so with the assistance of the “balancing of interests” approach to reasonableness identified in Irving: Central West, supra, at para. 11. . Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada
In Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada (Div Court, 2024) the Divisional Court dismisses a JR of a labour arbitration decision, here where an employee was dismissed "for conduct that created a safety hazard for other employees".
Here, the court comments on the interpretation of "how an arbitrator is to exercise their discretion to substitute a penalty other than dismissal under s. 48(17) of the LRA":[27] Section 48(17) of the LRA provides:Substitution of penalty
(17) Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. ....
[36] In prior discipline decisions relating to the exercise of discretion under s. 48(17) (or other equivalent statutory provisions), arbitrators in Canada have adopted the approach set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518 (B.C.L.R.B.). In that decision, the Chair of the B.C. Labour Relations Board repeatedly emphasized the importance of an employees’ service when determining the appropriate disciplinary penalty: see William Scott, at paras. 7, 9, 13. In that decision, at para. 11, the Board adopted the framework set out in an earlier Ontario arbitration decision, Re United Steelworkers of America, Local 3257 and Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Ont. L.A.). In Steel Equipment, at pp. 357-58, the arbitration board outlined ten non-exclusive factors for consideration when assessing aggravating and mitigating factors in discipline matters and listed the “long service of the grievor” as a key mitigating factor.
[37] Arbitrators have adopted the framework in William Scott and Steel Equipment in subsequent discipline decisions across Canada: see Canada Post Corp. v. Canadian Union of Postal Workers, 2010 CanLII 86717 (Can. L.A.), at paras. 48, 51; Zehrs Markets Inc. v. UFCW, Local 175 & 633, 2006 CarswellOnt 9907 (Ont. L.A.), at para. 85; International Union of Elevator Constructors, Local 50 v. OTIS Canada Inc., 2023 CanLII 127717 (ON GSB), 2023 CanLII 15002 (Ont. L.R.B.), at para. 34. This framework has also been recognized as authoritative in influential textbooks on labour arbitration in Canada: see Donald Brown, David Beatty & Adam Beatty, Canadian Labour Arbitration, loose-leaf, 5th ed. (Toronto: Thompson Reuters Canada Limited, 2019, loose-leaf updated 2024), ch. 7.67; Morton G. Mitchnick & Brian Etherington, Labour Arbitration in Canada, 3rd ed. (Toronto: Lancaster House, 2018), pp. 287-290.
[38] The rationale for considering the “long service of the grievor” has been described by various arbitrators as tied to the investment that an employee makes in their employment, an investment that increases with time, sometimes referred to as “service equity” or “trust equity”. That factor “represents a form of investment made by the employee which an arbitrator is required to give some weight in carrying out the review mandated in the legislation”: MacMillan Bloedel Ltd. v. I.W.A.-Canada, Local 1-85, Re (1993), 1993 CanLII 16674 (BC LA), 33 L.A.C. (4th) 288 (B.C. L.A.), at p. 304; see also UNITE HERE, Local 75 v. Fairmont Royal York Hotel, 2012 CanLII 19247 (Ont. L.A.). Failure to consider an employee’s full years of service has resulted in the overturning of other arbitration decisions in discipline matters: see University of British Columbia v. Canadian Union of Public Employees, Local 116, 2000 CanLII 27314 (B.C.L.R.B.), at para. 48, reconsideration dismissed, 2001 CanLII 33288 (B.C.L.R.B.), at paras. 28, 30; Bart v. McMaster University, 2016 ONSC 5747, 133 O.R. (3d) 592 (Div. Ct.), at para. 188.
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