In a complex ruling balancing the rights of workers with the operational needs of a healthcare institution, an arbitrator has upheld the termination of 40 unvaccinated employees at William Osler Health System — but also ruled that those workers are entitled to severance pay under Ontario’s Employment Standards Act (ESA).
The decision, by Arbitrator John Stout, addressed a policy grievance and 82 individual grievances brought forward by the Canadian Union of Public Employees (CUPE) Local 145. The grievances stemmed from the Hospital’s COVID-19 Vaccination Policy, which mandated all employees receive two doses of the vaccine or face disciplinary action, including suspension or termination.
The Union argued that the terminations were unjust and that the employees were entitled to severance pay under the ESA. In contrast, the Hospital maintained that the terminations were for just cause, citing the employees’ refusal to comply with a reasonable workplace policy designed to protect public health.
While the arbitrator agreed with previous rulings that vaccination requirements in healthcare are reasonable, he also acknowledged the complexity of determining the appropriate disciplinary actions for non-compliance.
“The employees chose not to be vaccinated and as a result they were not reasonably available to attend at work, which at a minimum severely and negatively impacted the employment relationship,” Stout stated in his ruling. He noted that while the grievors’ actions were not malicious, they nonetheless constituted just cause for termination under the circumstances at William Osler Health System.
Not ‘willful misconduct’
Despite upholding the terminations, Stout found that the employees were still entitled to termination and severance pay under the ESA. He specifically rejected the Hospital’s argument that the employees’ refusal to be vaccinated amounted to “willful misconduct, disobedience, or willful neglect of duty” as defined by the Act.
“The individual grievors who were terminated from their employment by the Hospital are entitled to termination and severance pursuant to the ESA,” Stout wrote, adding that an individual’s refusal to become vaccinated did not meet the threshold for “willful misconduct” under the law.
Nuanced approach
The decision underscores the nuanced approach required in such cases, where the broader public health considerations must be weighed against individual employment rights. Stout’s ruling aligns with other arbitral decisions that have found vaccination mandates in healthcare settings to be reasonable, but it diverges on the consequences for non-compliance.
In his analysis, Stout referenced other decisions, including those from Lakeridge Health and Trillium Health Partners, which were presented by the parties during the hearing. He acknowledged that while there is a consensus on the reasonableness of vaccination policies, there is no uniform approach to discipline for non-compliance. “Each case is different and must be assessed on its specific facts,” he said.
Stout’s ruling partially allows the grievances, ordering the Hospital to provide notice and severance pay to the terminated employees where applicable. He remains seized of the case should any issues arise in implementing the award.
For William Osler Health System, the ruling confirms their right to enforce a vaccination mandate but also highlights the financial implications of terminating employees, as severance payments will now be required. For the union, the decision represents a partial victory, affirming the rights of their members to receive compensation despite their termination.
For more information, see William Osler Health System v Canadian Union of Public Employee’s and its Local 145, 2024 CanLII 76299 (ON LA).
