Contractor to Bell had to follow company's vaccination requirement or lose the work
A mandatory vaccination policy of a company’s main client and a worker’s refusal to comply left him unable to perform his job duties and frustrated the employment contract, the Ontario Superior Court of Justice has ruled.
The worker was a systems technician for VuPoint, a satellite television and smart home installation company based in London, Ont., hired in 2014. He was paid on a piecework basis.
VuPoint was contracted by Bell Canada and Bell ExpressVu to install satellite and network services to Bell’s clients. Virtually all of VuPoint’s business was from Bell, so the worker essentially worked only for Bell.
In early September 2021, Bell informed VuPoint that its installers would be required to received two doses of an approved COVID-19 vaccine. VuPoint responded by implementing a mandatory vaccination policy stipulating that all installers must be vaccinated and provide proof of vaccination, as a failure to comply would constitute a breach of the company’s supply agreement with Bell.
VuPoint installers who didn’t comply would be “prohibited from performing work for certain customers (including Bell)” and might not receive any work, according to the policy, which didn’t mention termination of employment.
Neither Bell’s policy or VuPoint’s policy provided for any alternatives to vaccination.
Frustration of contract depends on the reasonable likelihood that an employee will return to work in the foreseeable future, according to employment lawyers.
Unvaccinated worker unable to perform work
The worker did not get vaccinated. The worker’s supervisor had work for him to do, but he couldn’t assign it to him because of the vaccination policy.
On Sept. 28, VuPoint informed the worker that his employment would be terminated effective Oct. 12 -with two weeks’ working notice during which he would continue to . This caught the worker off-guard, and on Oct. 9 he sent a letter to his supervisor saying that he would not disclose his vaccination status due to privacy laws and he had decided “not to take any vaccine including the COVID-19 experimental injection.” He also alleged that VuPoint was discriminating against him for his choice to not get the shot.
The worker found a lower-paying job in March 2022.
The worker commenced legal action against VuPoint, arguing that the company did not warn him of the consequences of non-compliance, as the vaccination policy did not mention termination. He said that VuPoint could not treat the termination as frustration of contract, as that would mean employers could use frustration as an alternative ground or any termination for cause as a result of misconduct. He added that it was his right to refuse to be vaccinated.
Frustration of an employment contract did not constitute just cause in the context of statutory notice entitlements, according to a federal adjudicator.
No control over vaccination requirement
VuPoint maintained that it had no control over the vaccination requirement, as it came from Bell. The only work that the worker could possibly do was for Bell, but he needed to be vaccinated in order to do it, said the company in asserting that the termination was due to frustration of contract.
The court noted that the worker was made aware of Bell’s vaccination policy and that he would have to be fully vaccinated in order to work, as he only provided services to Bell. This gave him at least the period of the two-week working notice in which he knew of the consequence of not complying,
The worker also did not at any point tell VuPoint that he intended to become fully vaccinated so that he could comply with the policy – in fact, he made it clear after he received notice of termination that he was not vaccinated and he had no intention of getting vaccinated, excluding any possibility that he might comply with the policy in the future, said the court.
The court found that when VuPoint advised the worker that his employment would be terminated in two weeks, it was a clear and unambiguous warning that his failure to comply with the policy could lead to dismissal.
An employer did not have to have a formal vaccination policy when placed unvaccinated employees on unpaid leave due to their inability to work at client workplaces, an arbitrator ruled.
Worker no longer qualified
The court also found that Bell’s mandatory vaccination policy meant that the worker lacked a necessary qualification to perform any of his duties for VuPoint. Neither the worker nor VuPoint could have anticipated such an unforeseen event when the worker’s contract began in 2014, so there was no default in the employment agreement by either the worker or VuPoint, said the court, adding that the company was not required to modify the worker’s contract.
The court noted that VuPoint’s lack of control over Bell’s policy made the circumstances similar to that of employees who are unable to work because of a statutory or legal change that negatively affects their qualifications. The worker’s employment as a systems technician where he could not perform his duties was radically different from what they intended when his employment began, the court said.
“[The worker’s] complete inability to perform the duties of his position for the foreseeable future constitutes a radical change that struck at the root of the employment contract, resulting in the frustration of the contract,” said the court.
The court determined that Bell’s vaccination policy was a “supervening event and radical change to the employment contract that was in place for the foreseeable future” with no indication that the policy would be lifted or that the worker would comply with it. As a result, the employment contract was frustrated and the worker was not entitled to any damages outside of the statutory amounts that VuPoint already paid, said the court in dismissing the worker’s action.
