Kone Inc. was within its rights to transfer a unionized worker in British Columbia to a different position when he refused to get vaccinated for COVID-19, an arbitrator has ruled.
The grievor, a mechanic, was moved from his position as a local representative (LR) to a service crew due to his choice to remain unvaccinated. The dispute centered on whether the employer’s decision to transfer the mechanic should meet the test for just cause for termination or demotion, or the test of reasonableness and good faith within managerial discretion.
Elevators and escalators
The employer’s core business includes the maintenance, testing, and repair of elevators and escalators.
The International Union of Elevator Constructors, Local 82, which represents mechanics and helpers employed Kone, argued that this move was, in effect, a termination without just cause or a demotion from the mechanic’s position as an LR — a position the union claimed was protected under their Maintenance Agreement with the employer.
Starting in the late summer of 2021, certain clients of the employer began requiring proof of vaccination against COVID-19 for access to their sites, referred to as Site Access Requirements (SARs).
In response, the employer decided to reassign work so that only vaccinated employees attended at client sites with SARs. The unvaccinated mechanic was notified of his transfer to a service crew in October 2020 and accepted the new position, later choosing to retire in mid-February 2021.
The employer countered the union’s claims by stating that an LR is an assignment within the broader classification of mechanic.
According to the employer, the Maintenance Agreement grants them the unrestricted right to transfer employees and to assign work within that classification.
They argued that their decision to transfer the mechanic to a service crew was a reasonable and good-faith exercise of this discretion, especially in light of client SARs and the mechanic’s vaccination status.
The arbitrator ultimately ruled in favor of the employer, concluding that an LR is not a protected position or a standalone job, but rather a role within the classification of mechanic.
The decision also stated that the employer had discretion under the Maintenance Agreement to transfer the mechanic to another role within that classification, provided they did not act in an arbitrary, discriminatory, or otherwise unreasonable manner.
Crucially, the arbitrator found that the employer’s reasons for the transfer were based on “relevant operational considerations” in an attempt to accommodate the mechanic’s choice to remain unvaccinated. The decision stated that it was “not motivated by an improper purpose or intention to deceive.”
The grievance was dismissed.
For more information, see Kone Inc. v International Union Of Elevator Constructors, Local 82, 2023 CanLII 88230 (BC LA)