Previous discipline was for unrelated misconduct; unpaid leave already solved safety issue
An Alberta worker’s refusal to comply with his employer’s vaccinate-or-test policy deserved significant discipline but not dismissal, an arbitrator has ruled.
The City of Calgary had an Occupational Health and Safety (OHS) policy in conjunction with its duty under the Alberta Occupational Health and Safety Act to make all reasonable efforts to protect the health and safety of its employees.
The city also followed a progressive discipline policy for employee misconduct that included levels starting with a written warning and followed by suspensions of one day, three days, and five days. If misconduct continued after a five-day suspension, an employee could be terminated.
When the COVID-19 pandemic arrived in March 2020, the city introduced safety measures such as mandatory masking, barriers, distancing requirements, and remote work where possible to help reduce the spread of the virus.
In June 2021, the Alberta government announced that COVID-19 vaccination was not mandatory, but it was “highly encouraged and recommended.” The following month, many restrictions were lifted, but cases began to increase again.
Vaccination policy
In August, the city informed the union that it was considering a workplace safety policy including a rapid testing requirement for non-vaccinated employees with disciplinary consequences for non-compliance. The city informed all employees of the plan and, in September, emailed all employees that it would be implementing a vaccination requirement for all employees by Nov. 1. Employees who failed to get vaccinated or provide proof would be subject to mandatory testing.
The policy was put into effect on Oct. 6 and rapid tests were made available at no cost for employees who didn’t provide proof of vaccination. Employees who refused to test were put on a 30-day unpaid leave of absence, with the policy stipulating that employees who remained non-compliance after the leave of absence would be subject to discipline.
One worker, who was a bus operator with Calgary Transit since 2014, refused to comply with the vaccination policy. On Nov. 8, the city put him on a non-disciplinary 30-day unpaid leave of absence for not declaring his vaccination status or participating in testing. The leave was extended for another 30 days and the worker was told that he could return to work if he got vaccinated or complied with testing requirements. However, the worker refused and remained on unpaid leave.
On Jan. 19, 2022, the city held an investigative meeting and the worker said that the policy didn’t affect him as a healthy person. He also said that the vaccination policy was a “criminal act” and he was being bullied by the city.
Management and an HR representative discussed things for a few minutes and then read a letter imposing a five-day suspension. Because the worker already had a three-day suspension for two preventable collisions in April 2021, the city opted for the five-day suspension because it was the next level of the progressive discipline policy.
Disciplinary record not a consideration: union
The union grieved the suspension, acknowledging that discipline was warranted but the suspension was excessive and didn’t properly follow progressive discipline, as the worker’s previous discipline was for unrelated misconduct.
A second investigative meeting was held on Feb. 2 and the worker repeated that he considered the policy to be a criminal act. He said that he had a right to privacy and he had researched the safety of the vaccines and rapid testing, and he believed that the chemicals involved could hurt him. After less than 10 minutes of discussion, management gave the worker a termination letter that had been prepared in advance.
The union grieved the dismissal for the same reasons as the suspension grievance, arguing that the city followed an “inflexible, lock-step, automatic approach to discipline.”
The worker was the only union member terminated for non-compliance with the vaccination policy, although others were disciplined. The union pointed to this as proof that the termination was discriminatory discipline.
Just over a month after the worker’s dismissal, on March 7, the city suspended the vaccination policy in light of decreasing COVID-19 cases and the lifting of a restriction exemption program that limited the activities of non-vaccinated people.
Reasonableness of discipline
The arbitrator referred to the three key elements at play in discharge cases established by the BC Labour Relations Board in its 1997 decision William Scott & Co. v. C.F.A.W., Local P-162, 1 Can. L.R.B.R. 1 – was there just cause for discipline, was the decision to dismiss the worker excessive, and if the dismissal was excessive, what alternative measures should be substituted?
The arbitrator also noted that the principles of progressive discipline are centred around the expectation that the employee will correct the misconduct if given the opportunity to improve. While the city had an established progressive discipline plan, it had been imposed on the workforce without agreement by the union, said the arbitrator.
The arbitrator expressed concerns that the city’s progressive discipline policy imposed the levels automatically once discipline was on record, as was the case in the decision to issue a five-day suspension to the worker followed by termination. In addition, the suspension letter and termination letter were prepared in advance of the two investigation meetings, said the arbitrator.
However, the arbitrator found that the city did not simply follow the process in lock-step, as the investigative interviews provided opportunities for the worker to explain himself and for management to consider his circumstances. In both cases, the worker clearly indicated that he didn’t intend to comply with the policy, the arbitrator said.
Dismissal not discriminatory: arbitrator
The arbitrator also found that the termination was not discriminatory, as the other employees who were disciplined but not fired for non-compliance had no previous discipline, so the city started them at the first level. The worker received a five-day suspension because he had an active three-day suspension on file, the arbitrator said.
However, while the worker’s previous discipline was safety-related, the previous misconduct had little in common with his failure to comply with the vaccination policy and should be given only limited weight, said the arbitrator.
The arbitrator also considered that, while the city had an obligation to ensure the safety of its employees, placing the worker on an unpaid leave of absence served that purpose and the worker’s continued refusal to comply did not increase the risk of workplace transmission. However, it wasn’t a long-term solution and there was no way for the city to know how long the policy would be necessary, the arbitrator added.
In addition, the arbitrator noted that the worker’s continued refusal to follow the city’s lawful, reasonable direction to comply with the policy was insubordination, a serious form of misconduct that was pre-meditated and sustained over several months during a time when there were significant staffing disruptions from employee absences.
The arbitrator also noted that the worker believed that vaccinations and rapid tests were harmful to his health, but this was based on his reliance on misinformation on the internet. This belief was a small mitigating factor, but “cannot serve to insulate him from all consequences of his actions,” said the arbitrator.
The arbitrator determined that the five-day suspension was too severe and a one-day suspension would have been more appropriate. As a result, termination was also excessive, although significant discipline was warranted, said the arbitrator.
The city was ordered to reinstate the worker to his transit operator position, but with no compensation for loss of salary or benefits in the nearly two years since his dismissal. See Calgary (City) and ATU, Local 583 (Deveau), Re, 2023 CarswellAlta 2271.
