'The tenets of progressive discipline… are paramount to the employment relationship': lawyer
“The tenets of progressive discipline and the identity people take from their work - which are powerful elements in the employment relationship – can’t be subverted, they need to be followed, and employers need to be almost perfect in following through with [the disciplinary process].”
So says Charles Millar, a senior associate lawyer at Achkar Law in Toronto, after an arbitrator determined that a healthcare employer had just cause to discipline a worker for non-compliance with a vaccine mandate but was too hasty in firing her.
London Health Sciences Centre (LHSC) is a group of acute-care teaching hospitals based in London, Ont. The worker was a full-time child and youth counsellor at the London Children’s Hospital, hired in 2003. She had no discipline on her record.
In August 2021, the Delta variant of COVID-19 was spreading due to it being more contagious than previous variants, and the healthcare sector was preparing for a potential surge in infections. As a result, LHSC announced on Aug. 31 that it was implementing a mandatory vaccination policy against the disease.
LHSC informed employees that the purpose of the policy was to protect patients and visitors to the hospitals and to protect employees so they could fulfil their critical care duties. Employees were to receive their first vaccination by Sept. 8 and be fully vaccinated with a 14-day period following vaccination by Oct. 22.
Discipline for non-compliance
On Sept. 3, LHSC sent an amended policy that after Oct. 22, only employees with a valid medical or human rights exemption would be allowed to take a rapid antigen test instead of being vaccinated, and a failure to comply could lead to discipline up to and including termination of employment.
The worker complied with the rapid testing requirement, but she didn’t get vaccinated. She also didn’t request an exemption from the policy.
LHSC held a live question-and-answer session about the policy on Sept. 10 and sent four reminders to employees between Sept. 17 and Oct. 15. The worker sent an email to LHSC expressing anxiety around the vaccine and that she wasn’t going to get vaccinated.
LHSC did a good job in rolling out the policy and communicating it to employees, according to Millar.
“The pandemic was a shocking time and a lot of new steps needed to be taken, and [LHSC] really took to heart what the guidelines were and put a policy in place based on those guidelines,” he says. “They were clear with what was expected of employees, they provided updates, and they provided an information session – and one particular thing they made clear was that if anyone didn’t follow this policy, it would result in disciplinary measures that could ultimately lead to termination.”
Worker confirmed non-compliance
On Oct. 15, management held a fact-finding meeting with the worker, who confirmed that she was aware of the policy requirements and she wasn’t planning on getting vaccinated. LHSC told her that she would be dismissed on or after Oct. 22 without further notice or compensation, but she was expected to report for two remaining shifts before then.
The worker asked how she was expected to go to work under the circumstances and suggested she use remaining vacation time for those two shifts. LHSC declined and placed her on an unpaid leave of absence. On Oct. 22, LHSC formally terminated the worker’s employment. The termination letter stated that her failure to get vaccinated “made the continuance of a viable employment relationship impossible.”
By this time, 99 per cent of LHSC employees were fully vaccinated.
The union filed a grievance alleging that LHSC did not have just cause for dismissal and it could have placed the worker on unpaid leave instead of firing her.
LHSC countered that the worker’s failure to comply with the policy during the pandemic was just cause. It argued that in the alternative, her employment contract became frustrated because the worker couldn’t work with the policy in effect, as the provincial government required LHSC to develop a mandatory vaccination policy. This was an unforeseen event or circumstance that made the employment contract impossible to perform as contemplated by the Ontario Employment Standards Act, 2000, LHSC said.
Breach of reasonable policy
The arbitrator noted that a breach of a clear and reasonable workplace rule can be met with a disciplinary response up to and including discharge. In this case, the vaccination policy stated that failure to comply may result in discipline up to and including dismissal. As both LHSC and the union agreed that the policy was reasonable in the circumstances of the pandemic, a breach could provide grounds for discipline, the arbitrator said.
The arbitrator also noted that, generally, an employee can’t be disciplined for exercising their right to withhold consent to provide personal medical information or to undergo a medical procedure. However, the pandemic “changed the world” and discipline arising from a breach of a reasonable COVID-19 mandatory vaccination policy was a different situation, the arbitrator said, noting that the dismissal took place when the more contagious Delta variant was a concern and available vaccines were safe and effective at reducing transmission or developing a serious symptoms.
In addition, public hospitals and their employees were at the forefront of the fight and their individual rights must be balanced with their duties and obligations, said the arbitrator, pointing to a previous decision that established that it was reasonable to discipline employees in a healthcare setting for refusing to comply with a vaccination requirement intended to protect other employees, patients, and hospital visitors.
The arbitrator added that the LHSC didn’t force employees to get vaccinated, but “those who chose to remain unvaccinated had to recognize that their decision had consequences.” In this case, the consequences involved a disciplinary response, said the arbitrator in finding that LHSC had just cause for discipline.
“The worker didn't have any medical or religious reason, so there was no need for accommodation and her refusal was her choice,” says Millar. “But by refusing to follow the policy - which they needed in order to effectively and safely help people – [LHSC] couldn’t continue to employ the worker and discipline was appropriate because she was refusing to follow a policy.”
Dismissal excessive
However, the arbitrator found that LHSC, although it effectively communicated the policy and the risk of discipline for non-compliance, jumped the gun on dismissing the worker. Although the worker knew there could be discipline, she wasn’t warned that she could be fired, the arbitrator said.
While the arbitral jurisprudence established that it was reasonable to discipline healthcare employees for not complying with a vaccine mandate, it also established that there should be progressive discipline to incentivize employees to get vaccinated. Terminating an employee for breaching a vaccine mandate is excessive if not preceded by progressive discipline “or a sufficiently long period of unpaid leave,” said the arbitrator.
“You need to act in good faith if you terminate an employee, and one of those principles is progressive discipline - you can’t forego progressive discipline at any point in time,” says Millar. “The policy didn’t say for sure that if you don't do this, then you're fired - it said non-compliance could lead to discipline up to termination - which means there needs to be some progressive discipline such as a warning letter, verbal warning, written warning, suspension, or a major performance improvement plan before termination.”
“Although they were in the context of a global pandemic, that doesn’t necessarily mean that the principles of employment law are subverted or vanish,” he adds.
No frustration of employment
The arbitrator disagreed with LHSC’s alternative argument that the employment contract was frustrated, as the dismissal was due to the worker’s choice, not an unforeseen event outside of the control of the worker or the employer.
“Frustration of contract is such a difficult scenario to play - essentially, frustration is a third element that isn’t in the control of the employer or the employee, that makes it so that the employment agreement can’t function,” says Millar. “In this case, it was the employer’s own policy and the employee’s refusal to follow the policy that did it, there's no third-party element.”
The arbitrator overturned the worker’s dismissal and substituted a 30-day disciplinary suspension. He declined to award damages for lost wages because the policy remained in place, it was reasonable, and the worker gave no indication that she would have gotten vaccinated had she been suspended instead of dismissed.
This case is an excellent example of an employer having a reasonable policy that wasn't quite executed perfectly, according to Millar.
“The tenets of progressive discipline that recognize how important it is to people’s identity, they're paramount to the employment relationship,” he says. “So having a progressive discipline policy in place and following it as perfectly as possible is crucial – [LHSC] was basically doing everything correct, they just jumped the gun on dismissal, it was really their only misstep.”
