The Humber River Hospital in Toronto wrongfully terminated two of its employees for refusing the COVID-19 vaccine, Labour arbitrator Jasbir Parmar has ruled. Represented by their union in the arbitration process, Stacy Hughes and Marisol Sanchez, both part-time hospital clerical staff since 2017 and 2016 respectively, alleged they were terminated without just cause pursuant to the hospital’s mandatory vaccination policy, legal documents show. The mandate was instituted in December 2021, with all staff required to submit proof they had accepted the COVID-19 jab by January 17, 2022.Employees who fail to comply “will be subject to disciplinary action up to and including termination,” the policy stated. Hughes and Sanchez were put on a two-week unpaid leave of absence and were given a February 3, 2022, deadline to get the shots or face termination. Neither of them complied with the vaccine mandate, and they were unceremoniously fired. Though the former staff do not contest the fact that there was a policy, the “union does not concede that the hospital’s policy, in its entirety, is reasonable,” states the legal documents. “The union submits that no discipline is appropriate, because, based on long-standing, well-established legal principles, employees cannot be disciplined for exercising their right not to consent to medical treatment and/or the disclosure of private medical information to the Hospital.”.Parmar's ruling highlighted that initially, the hospital's vaccine policy aligned with the provincial mandate, allowing unvaccinated employees to undergo regular COVID-19 testing. However, in December 2021, Humber River Hospital went beyond the provincial mandate by removing this option, requiring only fully vaccinated individuals or those with documented medical exemptions to continue working.“Furthermore, the union submits that the hospital did not have cause, in the specific circumstances of this case, to terminate the grievors’ employment on the basis of non-culpable grounds,” wrote Parmar, concluded “the grievances should be upheld.”“I find the hospital has not established the grievors’ engaged in culpable conduct warranting disciplinary action. I also find the hospital was not justified in terminating the grievors’ employment on non-culpable grounds,” wrote Parmar in the legal documentation. “The hospital’s decision to terminate was made based on the grievors’ failure to comply with the mandatory vaccination policy, and considered ‘all relevant factors, including their service and prior record,’” he wrote. "While the grievors’ decision not to be vaccinated meant they were not following the hospital’s policy, their refusal to receive the vaccine cannot reasonably be deemed as insubordination or other punishable behavior."“I find the hospital did not have cause to terminate the grievors’ employment, whether on disciplinary grounds or otherwise,” Parmar stated in the ruling.
