A Calgary Transit worker, fired for refusing to adhere to his employer’s “vaccinate or test” mandate during the pandemic, has been awarded his job back by an arbitrator.
But that reinstatement came without back pay and a warning that he missed termination by the “narrowest of margins.”
“The grievor will need to appreciate that he does not get to pick and choose which policies he will and will not follow,” the arbitrator said, noting that any further non-compliance with Calgary Transit policies may place him at risk of termination again.
City’s vaccination policy
The City of Calgary’s policy allowed employees either to get vaccinated or submit to regular at-home rapid antigen tests. GD, a transit operator, refused to comply with both options and was consequently terminated.
GD had concerns about the safety of the nasal swab tests, which he deemed coercive and illegal. Although he conducted his own research, primarily from online sources and meetings that critiqued vaccine mandates and lockdowns, he did not seek a medical exemption under the policy.
The city responded by initially placing GD on an unpaid leave of absence before escalating to a 5-day suspension, eventually terminating him on Feb. 2, 2022.
The city argued that GD’s “continuing and sustained refusal” to comply with its policy jeopardized the safety of other employees and the public. The city also noted that GD’s disciplinary record factored into its decision to terminate him.
However, the arbitrator concluded that termination was not the appropriate response. Notably, GD was the only city employee terminated for non-compliance with the policy, which was suspended effective March 7, 2022, a month after his termination.
The Amalgamated Transit Union, Local 583, which represents Calgary Transit employees, including GD, argued that the city’s discipline approach was flawed.
It did not attack the vaccination policy itself. Instead, it focused on the whether there was a cause for suspension and, ultimately, termination of employment.
Specifically, they stated that GD’s past disciplinary record should not have been a factor, given it was unrelated to the non-compliance issue. The union also questioned the fairness of him being the sole employee terminated, labeling it as “discriminatory discipline.” They suggested that a short suspension or written warning would have been more appropriate.
The arbitrator agreed with the union’s position that the termination was too severe, ordering GD’s reinstatement without any compensation, given the seriousness of the misconduct. It also substituted a one-day suspension for the five-day one originally issued by the employer.
For more information, see Calgary (Corporation of the City) v Amalgamated Transit Union, Local 583, 2023 CanLII 78847 (AB GAA)
Interesting sidebar: The two solitudes
Interestingly, the arbitrator in this case talked about Canada being a country of “Two Solitudes.” Often used to describe the relationship of French and English Canadians, it also fits in the reaction of people to lockdowns, public health restrictions and vaccination mandates during the COVID-19 pandemic.
The first group relied on time-tested sources like governmental agencies and public health experts for their information. As various public health restrictions rolled out, they viewed such measures as temporarily essential for the well-being of society.
Eagerly awaiting vaccines, this group celebrated their eventual widespread availability, viewing immunization as a pivotal step toward normality. Generally, they supported vaccine mandates imposed by authorities and harbored strong resentment toward those who opted against vaccination, deeming them misinformed and a hindrance to societal recovery.
Conversely, the second, smaller faction harbored skepticism about the severity of the pandemic and questioned the credibility of traditional authority figures. Instead of relying on institutional sources for information, they turned to internet research, often fraught with misinformation.
Unsettled by public health restrictions, they saw such measures as unwarranted invasions into their personal freedoms. Rallies became platforms to bolster this group’s dissenting views, some of which veered into conspiracy theories.
When vaccines were introduced, this group questioned their efficacy and safety, focusing on rare side effects. As vaccine mandates and restrictions took shape, they felt marginalized and treated as second-class citizens, arguing that the focus on health measures overlooked broader societal costs.
Despite their differences, these two groups shared common ground: mutual resentment and an increasingly polarized view of each other. Each side considered the other ill-informed and naive. Protests and counter-protests ensued, leading to a degradation in the quality of public discourse around COVID-19, especially visible on social media platforms.