Investigation not required for leave that complied with ministerial order
An arbitrator has dismissed a railway worker’s claim that his employer improperly placed him on unpaid leave for not getting vaccinated and denying him a religious exemption.
Canadian National Railway (CN) hired the worker in 2016 and promoted him to the position of S&C Maintainer in 2018. His job duties in the role included constructing, installing, and maintaining railway signal and communications systems.
On Aug. 13, 2021, the federal government announced that it would require federally regulated workers in the transportation sector to be vaccinated against COVID-19. About four weeks later, CN informed its employees that it would introduce a mandatory vaccination policy subject to medical or religious exemptions. The deadline to be fully vaccinated was Nov. 1.
On Sept. 14, the worker sent CN a vaccine notice of liability (VNOL) that accused CN of “unlawfully practicing medicine” and coercing employees to “submit to the experimental medical treatment for COVID-19.” The document also claimed there was no public health emergency and the vaccine was gene therapy, and the worker would hold CN responsible for “any financial injury” for his decision to not get vaccinated.
CN responded to the VNOL by reminding the worker of the Nov. 1 deadline and unvaccinated employees would not be allowed to work after that date.
To be successful in a religious exemption request, an employee has to establish a sincerely held faith-based belief that calls for declining vaccination, according to an employment lawyer.
Unpaid leave of absence
The worker sent another VNOL and CN indicated that he would be placed on an unpaid leave of absence until he provided proof of vaccination or Public Health indicated unvaccinated employees could return to work safely. Without such an indication, CN said it reserved the right to terminate unvaccinated employees.
CN extended the vaccination deadline to Nov. 15 and said employees with medical or religious exemptions would be allowed to work with regular testing at CN’s expense.
On Oct. 29, a ministerial order mandated vacation and stipulated that a vaccination policy must include leave without pay for unvaccinated employees who didn’t have an exemption. On the same day, Transport Canada issued guidelines on religious exemptions for railways, which required the belief to be religious in nature, prevent full vaccinations, and that it was sincerely held.
On Nov. 4, CN sent a letter to employees advising that unvaccinated employees would not be allowed to continue to work at CN and would be placed on an unpaid leave of absence that could result in dismissal.
An Ontario arbitrator allowed a worker’s vaccination refusal on the basis of her religious beliefs against abortion due to fetal cells used in vaccine development.
Policy issued
CN issued its vaccination policy on Nov. 13, which stated that “employees who fail to comply with the timeline above will be placed on unpaid leave, or as the case may be, terminated.” The worker was placed on unpaid leave on Nov. 16.
On Nov. 24, the worker submitted a religious exception request form that stated he religious beliefs prevented him from experimenting on his body “with untested and unsafe drugs, vaccines, and medical procedures.” It also said that his beliefs prevented him from being “coerced into doing things against my will” and “to honour the sanctity of human life including pre-natal human life and therefore protect unborn children from medical experimentation in the production of some vaccines.”
CN rejected the submission on the basis that it was a personal choice, not a faith-based practice that precluded vaccination.
The worker argued that the vaccines were in trial stages and getting vaccinated would “directly contradict my religious beliefs regarding experimentation of my body.” However, CN rejected his argument.
On Nov. 30, CN informed the worker that if he filed to get vaccinated by Jan. 10, he would be “released from your employment on a with-cause basis.” It issued a record of employment (ROE) that described the reason for issuing it as “dismissal or suspension.”
The Ontario Relations Board granted an exemption to joining a union based on a worker’s religious beliefs.
CN breached collective agreement: union
The union filed a grievance alleging that CN violated the collective agreement by failing to conduct a mandatory investigation before disciplining the worker and not following the mandatory steps for a leave of absence. It also contested CN’s refusal to grant the worker a religious exemption.
On Jan. 10, 2022, CN told the worker that he would remain on unpaid leave indefinitely since the ministerial order had been legally challenged.
The worker’s application for employment insurance benefits was denied because he lost his employment “as a result of your misconduct.”
On April 1, the worker obtained a letter from his pastor supporting a religious exemption to decline the vaccine and he signed a “Christian Declaration on Freedom from Vaccination Coercion” provided by Liberty Coalition Canada.
On June 20, the ministerial order requiring employers to have a mandatory vaccination policy was repealed. Eight days later, CN advised the worker that his unpaid leave of absence was ending. The worker returned to work on July 26.
Complied with ministerial order
The arbitrator found that CN did not breach the collective agreement regarding leaves of absence, as it was difficult to conclude that “an article in a collective agreement prevented CN, during a pandemic, from complying with a ministerial order requiring mandatory vaccination. The arbitrator noted that the ministerial order’s validity had been upheld by another arbitrator and the Quebec Superior Court.
The arbitrator added that the collective agreement governed employee-initiated leaves of absence, but it did not prevent other types of leaves.
The arbitrator also found that CN did not breach the collective agreement by failing to conduct an investigation, as the leave of absence did not constitute discipline. Although CN referred to possible release from employment, it placed the worker on unpaid leave in accordance with its policy with a “wait and see” approach. As soon as the vaccination requirement ended, CN brought the worker back to work – which it contemplated back in September 2021 by saying that the leave would last until Public Health gave the all-clear, said the arbitrator.
As for the religious exemption, it was reasonable for CN to deny the request because the worker did not show a genuine religious belief preventing vaccination, said the tribunal. His VNOLs contested the existence of a public health emergency but did not reference religion, and his request addressed his disagreement with the science around the vaccine and the public health emergency, said the arbitrator.
“[The worker’s] submission of the VNOL, without any reference to religion, as well as his comments to CN after the refusal to grant a religious exemption, indicate his concerns remaind grounded in the alleged inefficacy and safety of the COVID vaccine,” said the arbitrator.
The arbitrator noted that the pastor’s letter and Christian declaration came several months after the grievance was filed, and neither provided information about the worker’s personal beliefs.
The grievance was dismissed. See International Brotherhood of Electrical Workers (System Council No. 11) v. Canadian National Railway Company, 2023 CanLII 44118.
