Fired: Noncompliance with vaccine directive, false sick leave claim

An Ontario correctional officer’s continued refusal to comply with a vaccination directive and attempt to improperly use sick credits to cover his absence from work justified dismissal, an arbitrator has ruled.

The worker was a correctional officer at Elgin Middlesex Detention Centre (EMDC), a maximum-security jail in London, Ont., operated by the Ontario Ministry of the Solicitor General.

On Oct. 1, 2021, EMDC and other provincial correctional facilities introduced a Safe Workplace Directive, which required all employees to either attest that they were vaccinated against COVID-19, provide proof of a medical exemption, or take an education course plus a rapid antigen test before entering the workplace. The directive stated that non-compliance could result in discipline up to and including dismissal.

The worker did not provide any information on his vaccination status, so on Oct. 25 EMDC advised that he wasn’t considered vaccinated so he had to provide proof of a negative antigen test before entering the facility. The worker didn’t provide such proof, although he worked for four more shifts.

The staff services manager called the worker three times between Nov. 2 and 4 to advise him not to come to work again as he needed to complete the rapid antigen testing. He called again on Nov. 9 to arrange for the worker to pick up rapid antigen tests, but the worker didn’t respond. Instead, he arrived at EMDC that day and was told to leave for not following the directive. He was offered a test kit, but he declined to take it.

Unpaid leave followed by suspension

The worker was placed on an unpaid and unauthorized leave. He responded by sending the staff services manager a “notice of liability” he had obtained on the internet and said he would be pursuing criminal charges against him.

After a meeting on Nov. 23, the worker was suspended for 20 days for non-compliance with the directive. The worker filed a grievance challenging the suspension. On Dec. 17, the ministry sent the worker a letter of expectation reiterating the testing requirement and the possibility of termination for non-compliance.

 A return-to-work expectations letter stated that he was expected to return on Jan. 15, 2022, with proof of testing. The worker picked up rapid antigen tests on Jan. 11.

However, the worker called in sick on Jan. 15 and 16. On Jan. 17, he was advised that he needed a medical note to support his sick leave. The worker provided a note from his doctor stating that he was unable to work for medical reasons until Jan. 30.

Vague doctor’s notes weren’t sufficient for a sick leave claim likely made to avoid a vaccine mandate, an arbitrator found.

Sick leave credits claimed

The worker claimed short-term sickness plan (STSP) credits, but the ministry said he wasn’t eligible. It provided the worker with a medical questionnaire for his doctor to complete, but he didn’t return it.

On Feb. 2, the worker was advised over the phone that he was scheduled to work but still had to test if he was unvaccinated. The worker replied, “I guess I won’t be coming in, because I won’t test.” He filed a second grievance related to the denial of STSP credits for his absence.

ESDC scheduled an allegation meeting but the worker didn’t attend. He responded to allegations of refusing to comply with the directive by writing instead.

On April 4, a Safe Workplace Policy replaced the directive. The policy required employees to complete rapid antigen testing at certain intervals prior to entering the workplace, regardless of vaccination status.

The termination of a worker’s employment was for insubordinate behaviour, not harassment allegations she made, the Ontario Labour Relations Board ruled.

Dismissal for insubordination

On May 2, the ministry terminated the worker’s employment for his continuing failure to comply with the directive and policy, his disregard for the safety of himself and his colleagues, and his attempted abuse of the STSP. The worker filed a third grievance relating to his termination, arguing that he should have been placed on an authorized leave without pay pending the removal of the Safe Workplace Policy. The union argued that the worker wasn’t insubordinate; instead, he refused to comply due to legitimate safety concerns over the vaccine and rapid antigen tests.

The ministry maintained that it had cause to terminate the worker’s employment and authorized leave without pay had costs including pension and benefit premiums for the first calendar month. It also argued that the worker didn’t fall within statutory requirements for a leave of absence and it was within its discretion whether to grant such a leave or not. In addition, the worker never requested a discretionary leave, it said.

The arbitrator found that the obligation to take a rapid antigen test for unvaccinated employees was “in furtherance of an employee’s most basic obligation: the obligation to report to work if it is safe to do so.” When the worker refused to take a test, he failed to comply with that obligation and the requirement, said the arbitrator, adding that when the worker showed up to work without testing, he directly challenged the requirement in an attempt to be “deliberately provocative.”

The arbitrator also found that the worker was well-informed of the requirements and the potential consequences. The ministry provided him with letters of expectation and telephone messages. However, it was clear in the worker’s statements and actions – such as submitting the notice of liability from the internet that included “questionable assertions of fact” – that the worker’s reasons for refusing were based not on a concern for safety, but his belief that the science behind the vaccine and testing was false, the arbitrator said.

Discipline warranted, says arbitrator

The arbitrator determined that the worker was suspended for refusing to pick up a test kit and attending the workplace without testing. This was a breach of the directive and deserving of the disciplinary suspension, said the arbitrator in dismissing the first grievance.

As for the STSP credits, the arbitrator noted that the collective agreement established entitlement to them when an employee is “unable to attend to their duties due to sickness or injury.” It was reasonable for the ministry to suspect the reason for the sick leave given the worker’s resistance to the directive and the doctor’s note was insufficient information, the arbitrator said. In addition, when additional information was requested, the worker didn’t respond. As a result, the worker didn’t establish that he was unable to attend to his duties due to sickness or injury, said the arbitrator in denying the second grievance.

The arbitrator also found that the worker’s failure to provide sufficient medical information to support his claim for STSP benefits, combined with his resistance to the directive, led to the inference that his sickness was fabricated and his reason for absence was his refusal to test. This made his STSP claim fraudulent, supporting the ministry’s reference to it as a reason for dismissal.

The arbitrator determined that the worker’s failure to comply with the directive was insubordination and his attempt to abuse the STSP added to it. The ministry reminded the worker of its requirements over several months and the worker’s actions constituted continued subordination. This was sufficient to justify dismissal, the arbitrator said in dismissing the termination grievance. See OPSEU and Ontario (The Ministry of the Solicitor General) (Wilson), Re, 2023 CarswellOnt 12445.