Arbitrator dismisses grievance from North Bay workers' union on COVID-19 policy

While COVID-19 pandemic is no longer considered a public health emergency, fallout from workplace vaccination policies continues through the court process, with a recent ruling involving a northeastern Ontario city.

Last week, an arbitrator ruled against CUPE Local 122-1 on a grievance made against the City of North Bay.

The union representing municipal workers in North Bay took the city to arbitration over its mandatory vaccination policy, which led to the dismissal of 10 city workers in 2021 who did not get the vaccine, the arbitration award said.

Lawyers for CUPE made several arguments, but a central one was that, rather than dismiss employees, the city should have given them more options, such as taking an extended leave of absence.

“The union’s essential arguments are that the city implemented a drastic disciplinary measure, arising from a temporary policy, when less intrusive alternatives were open to it, and that it implemented that discipline too quickly,” said the decision from Ontario Labour Relations Board.

“The union argues that the city ought to have extended longer or indefinite leaves of absence for those who were non-compliant with the policy.”

However, a labour board decision earlier this year involving the Central West LHIN in southern Ontario found that mandatory vaccination was a reasonable policy during the pandemic.

Despite that decision, arbitrators are still required to examine individual cases to evaluate whether the policy strikes a balance between employee and employer rights.

“That includes assessing the employer’s interests, but also considering whether any less intrusive means is available to effectively address the employer’s concerns,” the decision said.

In this case, labour board arbitrator Elaine Newman ruled that allowing non-compliant workers to take leaves of absences runs contrary to the purpose of the policy.

GOAL WAS TO KEEP EMPLOYEES SAFE AT WORK

“The goal of the policy is to keep employees safe and working; it is not, as the employers highlighted here, to keep employees safe and not working,” the board said, quoting the Central West decision.

“The object of the policy is to get the work done, safely, with as much of the existing employee complement as possible. It is not to get the work done with temporary replacements.”

Otherwise organizations would have to hire and train new staff “who would then, presumably, be subject to termination should circumstances, including the state of mind of the non-compliant, change – all while the employers were attempting to cope with the greatest public health crisis ever faced.”

In North Bay, the arbitrator said the city implemented the vaccination policy, the “most effective protection to its employees,” and gave them a reasonable amount of time to comply.

“For those who chose the latter, the forum of the individual grievance is the place to explore whether some extension of the deadline, and elongation of the period of leave, might have been appropriate,” the decision said.

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“Having conducted a balancing of interests on the facts of this case, I am persuaded that the policy grievance must be dismissed. The individual grievances of those terminated have been held in abeyance pending the outcome of this grievance and may now be brought on.”