Calgary firefighter who quit in protest over vaccine mandate has case tossed by labour board

A firefighter battles a blaze with a stream of water. Photo: HR Law Canada/Canva

A Calgary firefighter who resigned in protest over the city’s mandatory COVID vaccination policy, and accused his union of breaching its duty of fair representation, has had his case rejected by the Alberta Labour Relations Board.

The unionized firefighter, who had nearly 20 years’ tenure, was represented by the Calgary Fire Fighters Association.

On Sept. 3, 2021, the City of Calgary introduced a COVID-19 Vaccination Policy, which required all staff to be vaccinated as a condition of employment. The association grieved the policy on Sept. 4, calling it “unfair, unreasonable, unduly privacy invasive and discriminatory.”

The city amended the policy on Oct. 6, 2021, to allow for rapid testing in lieu of vaccination, but employees would be responsible for the cost of the testing.

Staff had to be fully vaccinated and provide proof of vaccination by Nov. 1, 2021. Any unvaccinated staff would then be required to conduct rapid tests. Employees who did not comply were placed on an unpaid leave for 30 days — or until they became fully vaccinated. It allowed for penalties for non-compliance up to and including dismissal.

The resignation

In December 2021, several firefighters — including the complainant in this case — notified the city they were resigning “under duress.”

The city rejected his resignation due to the surrounding circumstances and placed him on an unpaid leave of absence instead.

After further discussions between the city and the firefighter, in which he maintained his resignation, he was sent a formal resignation form to complete.

On Dec. 16, the complainant asked the association to file a grievance on his behalf, alleging constructive dismissal as a result of the vaccination policy. The association, though, had obtained advise from its legal counsel that any grievance alleging constructive dismissal would fail.

The association, instead, suggested the firefighter rescind his resignation on the basis it was not voluntary, and it would file a grievance if the city refused to accept the rescission of his resignation.

On Dec. 22, 2021, the city released an official document stating the firefighter had resigned.

Post-resignation events

On Feb. 17, 2022, the firefighter emailed the association — alleging its failure to pursue his request to challenge what he thought was a constructive dismissal was a breach of the duty of fair representation. He asked for details on how to start a complaint with the Alberta Labour Relations Board.

On Feb. 18, the association sent him links with information on how to file a complaint, but noted it would vigorously defend any suggestion it had not complied with its duty of fair representation.

On March 25, 2022, a lawyer for the firefighter wrote to the city, expressing concerns about violations of his human rights and wrongful termination/constructive dismissal. The city’s response was that unionized employees cannot proceed with an action against an employer by civil claim, but rather must use the grievance procedure in the collective agreement.

On Aug. 5, 2022, the firefighter filed a complaint with the labour relations board.

Out of time

The board said the complaint was not filed in a timely manner. It noted that, under the Code, it can refuse to accept any complaint that is made more than 90 days “after the complainant knew, or in the opinion of the Board ought to have known, of the action of circumstance giving rise to the complaint.”

Back in December 2021, it noted the association told him — based on legal advice it received — the city was entitled to treat him as having resigned. It offered to file a grievance if he took back his resignation and the city refused.

Based on the evidence before it, the board said the firefighter did not attempt to rescind his resignation.

Further, on Feb. 18, 2022, he was given information from the association on how to file a complaint with the board. That included information about the time limits for filing.

And, the same month, he retained the legal counsel that continued to represent him at the hearing, it noted.

“At a minimum, the Complainant should have been ready to proceed quickly after February 18, 2022,” it said.

‘Unsophisticated litigant’

The complaint was filed seven-and-a-half months after the firefighter knew the association would not file a grievance on his behalf alleging the city had constructively dismissed him, it said. Further, it was five-and-a-half months after the association gave him the information he needed, and he retained legal counsel.

At that point, he could no longer be considered an “unsophisticated litigant.”

Without a reasonable justification for the delay, the complaint was dismissed as untimely.

For more information, see Dabbagh v Calgary Fire Fighters Association, IAFF 255, 2023 CanLII 2078 (AB LRB)

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