Unpaid leave reasonable health and safety option
The dismissal of an education worker who refused to comply with a vaccination policy was excessive when an unpaid leave would have protected the health and safety of staff and students at her school, a New Brunswick arbitrator has ruled.
The worker was an educational assistant at a school for kindergarten to grade 8 in Moncton, NB, run by New Brunswick’s Department of Education and Early Childhood Development. Her position involved helping special-needs students and supporting classroom teachers. She had no discipline on her record and was considered a good employee.
In August 2021, the department adopted a vaccination policy for its employees that required employees in all school districts to provide poof of vaccination against COVID-19. Any employee who didn’t do so would have to wear a mask in the workplace and undergo regular COVID-19 testing.
A week later, the department provided details, stating that employee would be required to provide their record of full vaccination by Sept. 3. If they didn’t, they would have to undergo testing three times per week and wear a mask at all times “inside and outside the school,” except for when eating at least two metres from others and no students were in the room. A failure to comply would subject an employee “to the disciplinary process, up to and including dismissal.”
Rapid testing required
The school year started on Sept. 7, at which point about six staff members, including the worker, hadn’t yet provided proof of vaccination. They were required to be tested three times per week, initially in a vacant classroom and later in the vice-principal’s office, at the start of the day. The tests were self-administered.
However, on the first day of school, the worker refused to be tested. She said she had health concerns including vertigo, recurring headaches, and leaking nasal cavities that she thought could be coming from her brain cavity. According to the worker, the principal brushed off her concerns and she left the classroom without taking a test.
The worker was told to report to the school district office, where she asked about the vaccination policy and the vaccine’s reliability and safety. She asked if there were other types of tests other than nasal swab, as she was worried that it would cause her injury. An HR representative asked her if she had a medical note and the worker replied that she was working on it.
The worker was then given a written reprimand stating that her continued refusal “will result in immediate and further disciplinary action up to and including dismissal.” She was placed on administrative leave.
On Sept. 9, the school district emailed the worker health and safety guidelines, an information document about COVID-19, and a request for medical documentation if she had a medical exemption.
Worker had medical concerns but no exemption
At another meeting on Sept. 10, the worker was asked if she had a medical exemption and the worker said she was trying to get one. According to the worker, she didn’t refuse to be tested, but rather gave her conditional consent if her questions were answered satisfactorily. The HR representative said that she would try to get answers to her concerns. However, she was given a second written reprimand stating that she was expected to comply by Sept. 13 or else she would be placed on unpaid suspension for up to five working days. The worker refused to accept the letter of discipline.
The worker left the school district office and took photos of herself standing beside the building’s sign holding a placard that read “No vaccine mandates” and posted them on social media.
The worker attended work on Sept. 13, but she still felt that undergoing a rapid test was a risk to her health. She gave the principal a document entitled “Notice of Liability” that said she would hold the principle personally liable for any harm or financial loss she suffered from being forced to participate in testing. The principal said she had to follow the school district’s protocols and asked her to leave the school.
The school district terminated the worker’s employment on Sept. 20. She received a letter of dismissal for refusing to follow the vaccination policy, which the school district called insubordination that put the health and safety of co-workers and students at risk. The letter also referred to a Sept. 20 meeting that the worker missed, but she hadn’t been aware of it. The worker refused the letter and filed a grievance alleging discipline without cause around her medical privacy and her “right to a discriminatory and harassment-free workplace.”
Union challenged dismissal regarding vaccination rules
The union argued that the level of discipline was unjustified, as a leave without pay was a reasonable disciplinary option that would allow the school district to ensure the health and safety of its employees. The school district violated the collective agreement’s just-cause requirement for dismissal, the union said.
Seventeen days after the worker’s dismissal, the province abandoned testing requirements for provincial employees, requiring them to show proof of vaccination or be put on unpaid leave.
On Dec. 6, the worker was examined by her family doctor but the doctor did not confirm any of her medical concerns.
The arbitrator noted that there was a particular need for the vaccination policy, as the majority of students at the school were under the age of 12 and could not be vaccinated against COVID-19 at the time. As a result, the policy was a reasonable and necessary rule to protect their health and safety, said the arbitrator.
The arbitrator also noted that the policy didn’t state that dismissal would necessarily result for a refusal to undergo testing, but rather the employee would be “subject to the disciplinary process.”
Abbreviated disciplinary process
Although the employer appeared to follow a progressive disciplinary process, the arbitrator said that progressive discipline must provide an opportunity “to reflect on their conduct… in the hope that they will not engage in further misconduct. In this case, the first two reprimands came over a period of three working days and the missed meeting – for which the worker wasn’t culpable – was a week later, making it an abbreviated process that gave no reasonable opportunity for the worker to reflect, the arbitrator said.
The arbitrator determined that it was reasonable and necessary to remove the worker from the workplace when she refused to provide proof of vaccination or get tested. However, this was achievable by a suspension or unpaid leave, particularly since the worker had medical concerns about the rapid tests and a good employment record of four years with no insubordination, said the arbitrator.
The arbitrator also noted that the worker’s contribution to public education with special skills in helping special-needs students should be considered as well, and she did not attempt to subvert her employment duties. As a result, termination of employment was excessive, said the arbitrator.
The Department of Education was ordered to reinstate the worker as of March 28, 2022, when the vaccination mandate was removed, with compensation for lost wages and benefits. See Canadian Union of Public Employees, Local 2745 v. Her Majesty in Right of the Province of New Brunswick, 2023 CanLII 58009.
