An arbitrator has ruled that Trillium Health Partners unjustly terminated a porter who was dismissed for non-compliance with the hospital’s COVID-19 vaccination policy.
While Arbitrator Daniel P. Randazzo upheld the hospital’s right to enforce its vaccination policy and found the porter — S.V. — failed to cooperate in the accommodation process, he concluded that termination was not warranted given the circumstances and substituted it with an unpaid suspension.
Three grievances
Arbitrator Randazzo addressed three grievances filed by the Canadian Union of Public Employees (CUPE) Local 5180 on behalf of S.V., challenging a written warning, a 14-day suspension, and her eventual termination. The union argued that the hospital violated the Human Rights Code by failing to accommodate S.V.’s medical request for an exemption to the vaccination schedule and that her discipline and termination were without just cause.
S.V., who was diagnosed with ventricular tachycardia in 2014, received her first dose of the COVID-19 vaccine on Dec. 19, 2021, after initially seeking a religious exemption that was denied. Shortly thereafter, she contracted COVID-19 and was hospitalized from January 14 to January 23, 2022, due to exacerbation of her cardiac condition.
During her hospitalization, she received a discharge note from Dr. C.G., an internal medicine and infectious disease specialist, recommending that she defer her second vaccine dose for three months and obtain clearance from cardiology. The note stated: “Given possible myocardial injury, and immunity following infection with previous vaccine dose, I have recommended waiting 3 months following her COVID-19 before proceeding with second dose.”
Accommodation process
Upon returning to work, S.V. sought an accommodation to delay her second dose in line with the medical advice. The hospital requested that she submit the COVID-19 Vaccination Medical Exemption/Accommodation Request Form along with supporting documentation, including the cardiologist’s report. S.V. provided Dr. C.G.’s note but refused to provide the cardiologist’s report, stating in an email: “I have been more than flexible and willing to provide all the requested documents by your office, but I will not be unnecessarily disclosing my personal medical records to my workplace.”
The hospital’s COVID-19 Immunization Policy Exemptions & Accommodations Committee reviewed her request but found that without the cardiologist’s report, they could not make a determination in alignment with Ministry of Health Standards. “The committee does not have sufficient information to make a determination,” the minutes stated.
Arbitrator Randazzo found that the hospital’s request for the cardiologist’s report was reasonable and that S.V.’s refusal constituted a failure to cooperate in the accommodation process. “It is incumbent on the employee seeking a medical accommodation, at the very least, to cooperate in obtaining and providing the necessary medical information,” he wrote. “By refusing to provide the report, the grievor breached her cooperative obligation within the duty to accommodate.”
Termination excessive in this case
Despite this, the arbitrator determined that the hospital’s decision to terminate S.V. was excessive under the circumstances. He emphasized the importance of balancing the hospital’s interests with those of the employee. “The Hospital’s need for a consistent expeditious application of the Policy… must be weighed against the Grievor’s need to follow Dr. C.G.’s recommendation,” he stated. “The Grievor had to choose between her job and following the recommendations of Dr. C.G., an internal medicine and infectious disease specialist. Undoubtedly, a difficult decision.”
He noted that S.V. had scheduled her second dose for April 19, 2022, and there was a reasonable possibility she would become fully vaccinated shortly after her suspension. “In these circumstances, the Hospital’s need for consistent application of the Policy and the protection of its employees and patients, when balanced against Dr. C.G.’s recommendation and the fact that the Grievor was prepared to obtain the second dose… suggests that a disciplinary measure less than termination would have achieved a better or more fitting balance,” he concluded.
The arbitrator rescinded the Dec. 20, 2021 written warning, finding that S.V. had received her first dose within the required timeframe and had attempted to communicate this to the hospital. He upheld the 14-day suspension imposed on March 15, 2022, agreeing that discipline was warranted due to her non-compliance with the policy at that time.
No reinstatement
In place of termination, Arbitrator Randazzo substituted an unpaid suspension covering the period from March 30, 2022, to April 19, 2022. However, he declined to reinstate S.V., noting that she did not ultimately receive her second dose as scheduled and remained unvaccinated at the time of the hearing.
“More than two years have passed since the Grievor’s termination, the Grievor did not get her second dose of the vaccine on April 19, 2022 and is not currently fully vaccinated,” he wrote. “In these circumstances, a conditional reinstatement is not appropriate.”
In the context of the previous discussion, Arbitrator Goodfellow is presiding over a separate case that addresses whether non-compliance with an employer’s policy constitutes “wilful misconduct” under the Employment Standards Act. The outcome of his decision could influence the determination of S.V.’s entitlement to notice and severance pay in the case discussed earlier.
Notice and severance pay
The arbitrator left the issue of S.V.’s entitlement to notice and severance pay under the Employment Standards Act to the parties to determine, as it was not within his purview to decide. He noted that another arbitrator — Goodfellow — is presiding over a separate case that addresses whether non-compliance with an employer’s policy constitutes “wilful misconduct” under the Employment Standards Act. The outcome of his decision could influence the determination of S.V.’s entitlement to notice and severance pay in the case discussed earlier.
Arbitrator Randazzo also reinforced the critical role of cooperation in the accommodation process, citing the Supreme Court of Canada’s decision in McGill University Health Centre v. Syndicat des employés de l’Hôpital général de Montréal: “When an employer makes a proposal that is reasonable, it is incumbent on the employee to facilitate its implementation.”
The decision also highlights the significance of clear communication and documentation in the accommodation process. The arbitrator found that the hospital’s request for additional medical information was justified, particularly given that S.V.’s own physician, Dr. C.G., recommended obtaining clearance from cardiology. “The cardiologist’s report was relevant and necessary,” he wrote. “The Grievor’s refusal to provide the report frustrated the process to the point where the Hospital was not able to properly adjudicate her claim.”
In conclusion, while the hospital did not breach the Human Rights Code in this case, the termination of S.V. was deemed unjust due to her unique circumstances and intent to comply with the vaccination policy within a reasonable timeframe. The ruling serves as a reminder of the importance of balancing organizational policies with individual employee rights and medical considerations.
For more information, see Trillium Health Partners v Canadian Union of Public Employees, and its Local 5180, 2024 CanLII 116816 (ON LA).
