A Toronto arbitrator ruled a Toronto hospital must compensate 40 healthcare workers who were fired “with cause” for refusing the COVID-19 injection and 42 who were suspended. The proceedings covered the 82 personal grievances as well as a policy grievance. Though arbitrator John Stout ultimately partially upheld Canadian Union of Public Employees (CUPE) grievances against the William Osler Health System (WOHS), specified in his decision it was technically lawful to dismiss staff for not complying with the hospital’s 2021 COVID-19 vaccination policy, which required two shots. “Not surprisingly, arbitrators have found that a requirement to be vaccinated against COVID-19 in a healthcare setting is reasonable,” wrote Stout. “No arbitral consensus has emerged with respect to the consequences for employees who chose not to be vaccinated or disclose their vaccination status.”“Based on the very unique circumstances at WOHS, I find that the grievors in this matter were terminated for just cause. The employees chose not to be vaccinated and as a result they were not reasonably available to attend at work, which at a minimum severely and negatively impacted the employment relationship.”Despite that, the hospital must pay because terminated and suspended staff who refused to comply did not do so with “malicious intent,” Stout wrote in the decision.“That being said, the individual grievors were misguided and their conduct was not with any malicious intent," wrote Stout. “The ESA provides that unless an employee’s actions amount to ‘willful misconduct, disobedience or willful neglect of duty that is not trivial,’ they will be entitled to termination and severance pay.”The hospital had denied the grievances, “taking the position that the individual grievors were appropriately terminated for just cause and not entitled to termination and severance pay under the Employment Standards Act (ESA),” Stout noted in the decision. The two parties were earlier unable to solve the matter through mediation, advancing to an arbitrator decision. In arbitrating the hospital’s COVID-19 vax discipline policy, Stout heard from WOHS Director Beverly Burns and Senior Labour Relations Specialist Melanie Pacheco and CUPE local president Erica Young, CUPE Steward Ray Walker and lawyer Wassim Garzouzi of Raven Law LLP via video conference on August 7. “I find that the individual grievors who were terminated from their employment by the Hospital are entitled to termination and severance pursuant to the ESA," wrote Stout in the August 12 decision. “Accordingly, WOHS is ordered to provide such grievors with their notice and severance pay under the ESA, where applicable. The grievances are partially allowed, to the extent outlined in this award.”
