Canadian Industrial Relations Board looks at dismissed postal worker's allegation
The Canadian Industrial Relations Board has dismissed a postal worker’s allegation that her placement on unpaid leave was a reprisal for disagreeing with Canada Post’s COVID-19 vaccination policy.
The worker was a letter carrier for Canada Post Corporation in Winnipeg. She was hired in 1998.
In October 2021, the federal government directed its Crown corporations – of which Canada Post is one – to implement COVID-19 vaccination policies consistent with the Core Public Administration Policy on vaccinations. The government confirmed this directive to Canada Post on Oct. 25.
Canada Post adopted a vaccination practice that required all employees, contractors, and visitors accessing its facilities to be fully vaccinated against COVID-19. The only exceptions would be for anyone who couldn’t be vaccinated due to any prohibited grounds of discrimination under the Canadian Human Rights Act. Employees had to confirm their vaccination status by Nov. 12, 2021, with non-compliant employees placed on unpaid administrative leave as of Nov. 26.
On Nov. 15, nine days before the leave would go into effect, Canada Post sent letters to non-compliant employees encouraging them to confirm their vaccination status and reminding them of the consequences of non-compliance. The union filed a policy grievance against the vaccination practice on the same day.
A registered nurse’s dismissal was for performance issues and not a reprisal for the nurse raising safety concerns at a patient’s home, the Ontario Labour Relations Board ruled.
Non-compliant employees placed on unpaid leave
On Nov. 27, Canada Post informed the worker that she was being placed on administrative leave without pay because of her non-compliance with the vaccination practice. It also said that she could resume working when she complied, which she could do at any time.
Two days later, the worker reported for work and, once supervisors determined that she still hadn’t complied with the vaccination practice, she was asked to leave.
On Dec. 6, the worker contacted Canada Post to request a religious exemption form. Canada Post responded with the procedure to obtain an accommodation and the worker replied with a request for information about where the order for the vaccination practice came from.
Canada Post explained that its vaccination practice was developed at the direction of the federal government and it mirrored the government’s own vaccination policy. It added that Canada Post was “committed to creating and maintaining a healthy and safe work environment for all employees, contractors, visitors, and customers” and that vaccination had been shown to be effective in reducing COVID-19 transmission and severe symptoms.
The worker filed a complaint of reprisal under the occupational health and safety section of the Canada Labour Code on Jan. 7, alleging that Canada Post placed her on unpaid leave because she disagreed with the vaccination practice, contrary to the code’s prohibition on reprisals against an employee who provides information to a person engaged in duties regarding conditions of work affecting the health or safety of the employee, or who has sought the enforcement of any health and safety provisions in the code.
A worker’s challenge to the City of Toronto’s COVID-19 vaccination policy was not an occupational health and safety issue, the Ontario Labour Relations Board ruled.
Health information protected: worker
The worker claimed that her disagreement with the vaccination practice was raising an occupational health and safety issue in the workplace, and therefore was subject to protection under the code. The vaccination practice breached her right to privacy and discriminated against her based on genetic characteristics, and the threat or imposition of unpaid leave forced employees to waive their right to privacy over their health information.
The board noted that in a reprisal complaint under health and safety legislation, the onus of proof was on the employee. Although the worker claimed discrimination based on genetic characteristics, she didn’t explain how it was linked to her attempts to exercise a health and safety right, said the board.
The board also found that the worker failed to explain how her disagreement with the vaccination practice was participation in an occupational health and safety process under the code. Since scientific evidence indicated that vaccination was the most effective way to counter COVID-19 and Canada Post had a legal obligation to ensure employee health and safety, the worker’s disagreement seemed to be counter to health and safety measures and not a process under the code, said the board.
The board disagreed with the worker’s claim that she was disciplined because she voiced concerns about the vaccination practice. Canada Post clearly indicated to her and all employees that the unpaid leave was administrative, not disciplinary, it was in accordance with the federal government’s policy, it applied to all non-compliant employees, and it would only last until the worker complied with the practice or the practice no longer applied.
As a result, there was no nexus between the unpaid leave and the worker’s challenge to the vaccination practice, said the board.
The reprisal complaint was dismissed.
See Dupas and Canada Post Corp., Re, 2022 CIRB 1030.
