The Canada Industrial Relations Board (CIRB) has dismissed a complaint of unjust dismissal from a ship’s cook who was terminated by Lower Lakes Towing Ltd. for refusing to comply with the company’s mandatory COVID-19 vaccination policy.
The CIRB found that the dismissal was not excessive or unjust, and that the company’s vaccination policy was reasonable under the circumstances.
R.F., who had worked as a cook with Lower Lakes Towing for 13 years, filed his complaint in April 2022 under section 240(1) of the Canada Labour Code, arguing that his dismissal in January 2022 was unjust and constituted constructive dismissal. He was terminated after refusing to provide proof of vaccination as required by Lower Lakes Towing’s COVID-19 policy, which was introduced in response to federal mandates.
In his complaint, R.F. contended that the vaccination requirement imposed by the company constituted a significant change to his employment terms and that the company had not employed progressive discipline prior to his dismissal. He further argued that his suspension without pay amounted to constructive dismissal, especially since the federal vaccine mandates were lifted only a few months after his termination.
The CIRB, however, sided with the employer, finding that Lower Lakes Towing’s policy was clear, reasonable, and introduced in line with federal health directives. “The Board finds that the respondent has proven that the policy was reasonable and could be applied to an employee using the KVP test,” wrote Vice-Chairperson Paul Love, who sat alone on the panel.
Mandatory policy
Lower Lakes Towing implemented the vaccination policy in October 2021, which required all employees to be fully vaccinated by January 24, 2022, as per Transport Canada’s Interim Order No. 7, which applied to the air, rail, and marine sectors. R.F. did not provide proof of vaccination by the deadline and was subsequently placed on unpaid leave in November 2021. He continued to refuse vaccination despite warnings from the company and was ultimately terminated in January 2022.
The CIRB noted that R.F. was given multiple opportunities to comply with the policy before being dismissed. “The complainant had 82 days to consider the significance of his behaviour and choices and to comply with the respondent’s policy,” the ruling stated.
Lower Lakes Towing argued that the mandatory vaccination policy was necessary to protect the health and safety of its employees, especially given the close quarters aboard its vessels, which made social distancing and quarantining impractical. The CIRB agreed with this rationale, highlighting the company’s responsibility to ensure a safe working environment under section 124 of the Canada Labour Code.
No grounds for constructive dismissal
R.F. also argued that his suspension without pay constituted constructive dismissal, claiming that the company had no right to suspend him for refusing vaccination. However, the CIRB found that this aspect of his complaint was untimely, as he had not filed within the 90-day time limit prescribed under the Canada Labour Code. The Board dismissed the constructive dismissal claim outright, stating, “The Board does not have jurisdiction to decide the merits of an untimely complaint.”
Additionally, the CIRB rejected R.F.’s assertion that his past performance and seniority should have been considered as mitigating factors. “Seniority or past good behaviour do not excuse an employee from complying with lawful workplace directions,” the ruling said.
Just cause for dismissal
In evaluating the case, the CIRB applied the three-part William Scott test, which is used to determine whether an employee’s dismissal is just. The Board found that Lower Lakes Towing had reasonable cause to discipline Finnegan, as he failed to comply with the company’s clear and lawful vaccination policy.
R.F. did not apply for a medical or religious exemption from the policy, and his repeated refusal to vaccinate, despite warnings and the imposition of unpaid leave, justified the company’s decision to terminate his employment. “The complainant simply experienced the natural consequences of failing to comply with the conditions of his employment,” the CIRB stated.
The ruling emphasized that the purpose of the unpaid leave was to give R.F. time to comply with the policy. When he continued to refuse vaccination, the company’s decision to terminate him was not considered excessive. “The respondent did take a progressive approach to the complainant’s discipline,” the ruling noted, pointing out that he was placed on leave and received multiple warnings before his termination.
Policy upheld
The CIRB concluded that Lower Lakes Towing’s vaccination policy met the criteria for a reasonable workplace rule under the KVP test, which requires that a policy be clear, unequivocal, and applied consistently. The ruling also noted that the company’s policy allowed for exemptions and alternative protective measures, such as regular testing, for those who qualified.
For more information, see Finnegan v Lower Lakes Towing Ltd., 2024 CIRB 1140 (CanLII).
