COVID-19 Update: Dismissal For Refusal to Vaccinate Upheld

As employers across the province continue to respond to the COVID-19 pandemic through the implementation of various policies and practices, case law developments continue to clarify this once murky area of law. In this Insights article we review the recent case of Fraser Health Authority v British Columbia General Employees’ Union.

In this decision, a British Columbia arbitrator upheld the dismissal of a unionized health care employee who refused to become vaccinated despite a government vaccination  mandate. This is important not only for employers who have been subject to a government issued vaccination mandate, but also has important consequences for employer-imposed vaccination policies as well.

In Fraser Health Authority v British Columbia General Employees’ Union, 2022 CanLII 25560, the employer was subject to a government vaccination mandate as of September 2021. This required all British Columbia health authority employees to become vaccinated against COVID-19 in order to work. Like Ontario’s various vaccination mandates, the consequence for non-compliance was left to the employer to decide.

The employee was a substance abuse counsellor with a seven year service record. Despite multiple notifications, she refused to get vaccinated and advised her employer that she did not ever intend to do so. This led the employer to end her employment on November 25, 2021 – the eve of the Omicron wave. The union argued that the employer did not have just cause and should have placed the employee on a leave of absence instead.

Arbitrator Kandola disagreed with the union, finding that the employer had just cause to dismiss the employee. This was primarily because the employee had made clear that she would not be returning to work in the foreseeable future, and that this outcome was a result of her own decisions. The employer also bolstered their position by providing evidence that they would experience serious operational impacts from keeping employees on an indeterminate leave of absence. The employer had given the employee multiple chances and multiple warnings, and  had gathered information to assess any mitigating factors before making its final decision.

Despite some factual differences from most employers’ situations, this case provides valuable support for the proposition that a unionized employee in a care sector can be dismissed for continued non-compliance with a reasonable vaccination policy. This is so long as the employee is given an individualized assessment of their situation and so long as their reason for being unvaccinated is not protected by the Human Rights Code. It is a useful contrast to the Chartwell Housing Reit decision by Arbitrator Misra released earlier this year. That case had refused to uphold the automatic dismissal of 14 employees working for an Ontario long-term care home. While the law of dismissal for non-vaccination remains underdeveloped at this time, this new decision brings us one step closer to knowing how employers are permitted to respond to such situations.

PooranLaw will continue to monitor legal developments related to mandatory vaccination policies and COVID-19.  In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.