'There must be sufficient connection between the employee's responsibilities and the requirement to be vaccinated'
An employer did not have just cause to fire a worker for non-compliance with its COVID-19 vaccination policy and there was no frustration of the employment contract, an Ontario court has ruled.
Sensient Colors Canada is a company that developed and supplies colour systems for the food and beverage, cosmetic, and industrial industries. Located in Kingston, Ont., Sensient is a subsidiary of a US company.
Sensient hired the worker in 2011 and she eventually became a senior sales account manager responsible for selling colour systems in the cosmetic industry. She was expected to regularly go to customer facilities in person at least four times per week as well as conduct virtual meetings. She also had to travel to the US for work-related conferences and trade shows two-to-three times per year.
The worker always received positive performance reviews and grew the company’s reach in Canada.
During the COVID-19 pandemic, the worker continued to visit several customers in-person while meeting remotely with those who preferred to do so. For in-person visits, she willingly complied with all safety measures they took. She also maintained accounts outside Ontario through phone and digital communication, with none asking her to meet in person.
Company introduced vaccination policy
In October 2021, Sensient introduced a COVID-19 vaccination policy that required all customer-facing sales roles and director-level positions to provide proof of vaccination. The policy’s purpose was to comply with government regulations in Canada and the US for international travel, customers implementing their own vaccination policies, and general health and safety.
The worker attended two town-hall meetings at which the company informed all employees of the policy, including that accommodations would be made for religious and medical reasons and the deadline to show proof of vaccination was Dec. 1.
The worker declined to disclose her vaccination status, citing privacy concerns, and later acknowledged that she wasn’t vaccinated. Sensient management warned her on Oct. 22 about the consequences of non-compliance, but the worker remained steadfast in her position and didn’t seek accommodation.
On Nov. 10, Sensient’s senior manager of HR told the worker that the company intended to treat her non-disclosure of her vaccination status as a resignation. The worker advised that she wasn’t resigning and said she was disappointed at her treatment after more than 10 years of service.
On Nov. 18, Sensient wrote to the worker to confirm that compliance with the policy was a condition of continued employment and if she didn’t disclose her vaccination status by Dec. 1, she would be terminated for cause for failing to comply with health and safety requirements. The company reiterated she could request accommodation for medical or religious reasons.
Shortly thereafter, Sensient asked all senior sales account manager to list their top 10 customers and identify which ones had vaccine mandates. All 10 of the worker’s top customers didn’t have any requirements for on-site visits.
Multiple warnings followed by termination
The worker received two more written warnings and a verbal warning, but the worker still didn’t disclose her vaccination status – the only employee covered by the policy who didn’t. As a result, the company “reluctantly” terminated her employment for cause on Dec. 1 and told her that if she chose to comply in the future, her employment status would be reconsidered. She was 37 at the time of her termination.
The worker commenced a wrongful dismissal action, claiming Sensient didn’t have just cause. The company maintained that she was unable to meet the fundamental element of her job involving travel four days per week. It also argued that the worker’s non-compliance amounted to wilful misconduct under the Ontario Employment Standards Act (ESA) and, alternatively, her employment contract was frustrated.
The court found that Sensient’s implementation of the vaccination policy was reasonable given the health and safety concerns at the time.
“The court didn't seem to have a problem with the vaccination policy - it was specific to employees who had customer-facing sales roles and positions at the director level, and [Sensient] was very clear about why this policy was implemented,” says Paulette Haynes, principal of Haynes Law Firm in Toronto. “At that point in time, there was a lot of unknowns and employers were tasked with keeping the workplace safe in light of the Occupational Health and Safety Act – there was no issue with the policy or the way in which the company executed it and communicated it to its employees.”
However, the court wasn’t satisfied that the company had just cause to terminate the worker’s employment. It noted that the worker spent the majority of her time working from home prior to and during the pandemic, and that her performance reviews indicated she met or exceeded job requirements. In addition, none of top 10 customers required vaccination for on-site visits and she complied with all health and safety measures when she conducted such visits, so her vaccination status didn’t impact her ability to perform her duties during the pandemic, the court said.
Proportionality of just cause termination
“The court referred back to McKinley v. BC Tel, 2001 SCC 38, which was the seminal case that set out the contextual approach and requires courts to consider all the circumstances to determine whether a just cause dismissal is appropriate in the circumstances,” says Haynes. “And central to that contextual approach is the principle of proportionality, which means the employer has to explore alternatives to just cause dismissal before engaging in a just cause dismissal.”
“The court actually pointed to what could be a more proportionate response to the worker’s refusal to comply with the vaccination policy - it included reviewing and revising her customer portfolio if required, and even the possibility of suspending her from her customer-facing sales duties or putting her on a leave of absence,” adds Haynes.
As a result, the court determined that the termination of the worker’s employment wasn’t a proportionate response to her refusal to disclose her vaccination status. It also found that her refusal didn’t meet the higher standard of wilful misconduct required to disentitle her from ESA entitlements, as the jurisprudence established that “consent to medical procedures or disclosure of private medical information is not an area that falls under the employer’s sphere of authority.”
“Whether or not to be vaccinated is the individual's decision to make, so the court's position was that in the context of her employment, the worker’s conduct didn’t meet that willful misconduct threshold under the ESA, which is a higher standard to meet than just cause,” says Haynes.
No frustration of employment contract
The court also found that the worker’s vaccination status didn’t fundamentally alter her ability to perform her job, so Sansient’s argument that her employment was frustrated didn’t work. Although there were travel restrictions, the worker was able to maintain her accounts and grow new business during the pandemic through remote means, and the inability to travel didn’t amount to frustration, said the court.
The frustration argument requires an inability of a worker to perform their job duties, which wasn’t the case here, says Haynes.
“[The worker’s] top 10 customers confirmed that they didn’t have any vaccination requirements for on-site visits, and her vaccination status had no impact whatsoever on her ability to visit her customers over the course of the pandemic,” she says. “And there were references to the fact that she actually visited many of her customers in person during the pandemic and her interactions were often done remotely - it was also noted that she was able to maintain her accounts and even grow her business outside of Ontario during the pandemic.”
The court ordered Sansient to pay the worker 12 months’ salary, benefits, deferred profit-sharing plan contributions, and vacation pay – plus bonuses awarded during the notice period, as the company’s bonus plan had no terms excluding entitlement to bonuses during the notice period - a total of $182,822.84.
There have been other decisions with similar findings to this one, but others have upheld dismissal for non-compliance with vaccination policies - so the case law is far from settled at this point, according to Haynes.
“When an employer terminates with cause for non-compliance with a vaccination policy, there must be sufficient connection between the employee's job responsibilities and the requirement to be vaccinated to justify imposing the ultimate penalty of ending the employment relationship,” she says. “And the court said here that you may very well have cases where a refusal to vaccinate might sufficiently undermine that worker's ability to carry out the essential duties of their job and therefore warrant just cause dismissal - but we can't just assume that even if you have a great vaccination policy, you can terminate for non-compliance.”
