Worker continued refusal to comply after unpaid leave, suspension; made threats against management
An arbitrator has upheld Service Ontario’s right to put an unvaccinated worker on unpaid leave, suspend her, and then fire her for non-compliance of a vaccine mandate during the pandemic, as well as the worker’s conduct in refusing to comply.
The worker was a customer care representative for Service Ontario in Hawkesbury, Ont., since 2017. She worked under a fixed-term, part-time contract than was renewed several times. She was considered a good employee and got along well with management and co-workers.
On Oct. 2, 2021, Service Ontario introduced a safe workplace directive (SWD) in response to the COVID-19 pandemic. The SWD required all employees to either attest that they were fully vaccinated against COVID-19, provide a valid medical exemption for not being vaccinated and undergo rapid testing, or complete an education course and a rapid test before entering the workplace.
The worker didn’t attest to her status or advise of a medical exemption, so Service Ontario considered her to be unvaccinated and instructed her to complete an educational program and provide proof of a negative test every 48 hours before entering the workplace.
On Nov. 5, the worker told her manager that she would not be getting testing kits or submitting to the testing requirements. Service Ontario placed her on unpaid leave and found her to be unco-operative when it told her to leave the office.
Non-compliance
Four days later, an allegation meeting was scheduled, to which the worker indicated that she would not comply with the SWD because she didn’t consent to any type of COVID-19 testing. She also disagreed that she was unco-operative when leaving the office and accused the Ontario Public Service of targeting and discriminating against unvaccinated employees. The worker claimed that she hadn’t wanted to leave until she received clarification of what it meant to be placed on unauthorized unpaid leave.
The allegation meeting was held on Nov. 15. According to managers present, the worker’s behaviour was aggressive and made one manager feel intimidated and anxious.
On Nov. 29, the worker was suspended for 20 days and Service Ontario later sent the worker its expectations upon her return to the workplace. The worker maintained that she would not undergo rapid testing, so Service Ontario advised that she would be placed on additional unpaid leave pending a second allegation meeting in January 2022.
At the second allegation meeting, the worker reiterated her refusal to comply with the SWD.
On Jan. 17, 2022, the worker sent two “cease and desist” letters to her manager and a human resources advisor. The letters accused Service Ontario of “a pattern of harassing activities” for which she would hold the manager and HR advisor “personally liable for any loss of income, damages and/or any injury I suffer as a result of your actions.”
Termination of employment
Service Ontario terminated the worker’s contract on Feb. 23. Her current contract was scheduled to expire five weeks later, on March 31. The termination letter cited the worker’s failure to comply with the SWD as the primary reason for termination but also referred to the manner in which she expressed her refusal.
Ontario’s chief medical officer of health revoked the SWD on April 1.
The worker filed three grievances – one regarding the unpaid leave, the second over the 20-day suspension, and the third for her termination. The union argued that Service Ontario should not have taken a punitive approach as there was no insubordination or misconduct in the worker’s refusal to be vaccinated or get tested, and her history of begin a good worker should have been considered. It also argued that the worker’s behaviour at the allegation meetings was not insubordinate and she only felt strongly about her position.
Service Ontario maintained that the worker’s refusal to follow the SWD provided just cause for dismissal, and her behaviour associated with her non-compliance provided additional cause.
The board found that, between the letters and meetings, Service Ontario and the worker discussed the worker’s behaviour as part of the employer’s concerns and the worker had a chance to express her views on those concerns.
Unacceptable conduct
The board also found that the worker’s behaviour in response to her employer’s SWD was unacceptable, as she threatened and warned her manager and an HR advisor that they would be held personally liable and sent them “cease and desist” letters accusing them of breaching the Charter of Human Rights and human rights legislation. The reality was that there was no personal liability as being unvaccinated was not a ground for discrimination, said the board.
However, the board found no evidence that the worker was overly aggressive at the allegation meetings, as only one manager said she felt intimidated and others reported she was firm but not loud or aggressive.
The board also found that the safety protocols in the SWD were necessary and reasonable in the pandemic and the worker was given options to comply. However, she continued to refuse, even after progressive steps of being placed on unpaid leave and a 20-day suspension. Service Ontario gave her multiple opportunities to comply with the SWD before terminating the worker’s contract, but the worker chose the consequences of her actions, the board said.
The board disagreed with the union that lesser discipline was appropriate, as “the enforcement of a reasonable employer policy necessarily includes the ability to discipline breaches of the policy” and the worker made it clear that she had no intention of complying with the SWD. The worker’s conduct and Service Ontario’s interest in maintaining a safe and healthy workplace during the pandemic justified the unpaid leave, 20-day suspension, and termination, said the board in dismissing the grievances. See OPSEU and Ontario (Ministry of Public and Business Service Delivery) (Titley), Re, 2024 CarswellOnt 6595.
