Labour Arbitrator Strikes Down Key Provision of City’s Staff Vaccine Policy – TPR Hamilton | Hamilton's Civic Affairs News Site

December 3, 2022
The City of Hamilton cannot terminate any employees represented by CUPE 5167 who refuse to disclose their COVID vaccination status.
They can be placed upon unpaid leave, but not necessarily indefinitely.
“The City may not terminate an employee for just cause when that employee refuses to be vaccinated, the City may place that employee on an unpaid leave. I express no opinion at this point concerning the duration of any such leave or whether, after some period of time, the employment relationship may be frustrated if the employee is unable to return to work,” ruled Sole Arbitrator Jesse Nynam in a 41-paragraph ruling issued November 24, 2022. “Those issues will be determined, if necessary, in a factual context in which they may arise.”
The City of Hamilton implemented its COVID vaccination policy in January 2022, making it mandatory for employees to be fully vaccinated against COVID by May 31, 2022, or be terminated.
The termination deadline was extended to September 30, 2022, before the policy was “suspended” in August 2022.
Approximately 112 CUPE members did not comply with the suspended policy. Approximately 21 are part-time employees. The Arbitrator states “approximately” in their ruling.
CUPE represents nearly 3450 City employees.
[In October, Ontario’s Superior Court declined to rule on the policy following a legal challenge by a group of eleven non-unionized employees. The Court ruled the suspension made the issue moot.]
Notwithstanding the suspension, both the City and Union asked for the arbitrator to interpret and rule on the meaning of article 10.3(g) of their Collective Agreement, which states:
“Where an Employee is required by the Employer to be immunized, the Employer agrees to provide or reimburse Employees for the cost of immunizations not covered by OHIP. Where a prophylactic alternative to immunization is available it may be taken as a substitute to immunization where appropriate based on medical or religious grounds. It is understood that the Employer cannot force an Employee to be immunized or to take the prophylactic alternative without their consent. It is further understood that where such immunization (or the prophylactic alternative to immunization) is required in order for the Employee to attend work and the Employee refuses the immunization or its substitute, they may be placed on unpaid leave with no loss of seniority. In this event the Employer agrees to take reasonable steps to accommodate workers through alternate work arrangements.”
The City argued that while this section allows it to place employees on short-term unpaid leave, it does not prevent the City from terminating employees who refuse to get vaccinated against COVID.
The City argued this clause was never intended to apply to a long-term situation such as COVID.
CUPE argued the section constitutes strong job protection language which prevents the City from disciplining or terminating unvaccinated employees. The contract requires the City to ‘take reasonable steps to accommodate that worker through alternate work arrangements.’
“To find that the City could also simply terminate the employee and avoid any obligation to explore alternative work arrangements or to maintain the employee’s employment status at all significantly undermines the balance between the competing rights that are recognized in Article 10.3(g),” rules Nynam.
Terminating unvaccinated employees “violates Article 10.3(g) and thus is unreasonable and unenforceable,” the ruling states.
The City “may place that employee on an unpaid leave,” Nynam finds. However, Nynam cautions that “after some period of time, the employment relationship may be frustrated if the employee is unable to return to work.”
As to what happens if this occurs, Nynam declined to make a ruling.
“Those issues will be determined, if necessary, in a factual context in which they may arise.”
In light of recent decisions (including this one) and the City of Toronto’s decision to end its mandatory vaccination policies, Ward 7 Councillor Esther Pauls is moving a motion at Council this coming Wednesday to revoke the City’s COVID vaccination requirements for both existing and new employees.
Pauls’ motion amends the COVID vaccination policy to only apply to employees at the City’s two municipal long-term care facilities, its paramedics, and workers at the Red Hill Child Care Centre.
City Councillors will no longer be required to disclose their vaccination status. Councillors are not considered employees of the municipality. Thus the continuation of the vaccine mandate does not apply to them in their capacity as the Committee of Management of Hamilton’s two long-term care facilities.
Wednesday’s Council meeting begins at 9:30 am. Pauls’ motion is near the very end of the agenda.