Society's Child
Canada: Scores of unvaccinated workers are filing wrongful dismissal claims against employers, lawyers say
Vanmala Subramaniam
Thu, 13 Jan 2022 09:58 UTC
© Fred Lum/The Globe and Mail
People walk along a street in Toronto's financial district, on Jan. 13, 2021.
Employers across the country have begun firing employees who are not fully vaccinated against COVID-19, according to lawyers who say they are inundated with vaccine-related cases and claims of wrongful dismissal.
The deluge of cases sets up a crucial legal test of vaccine mandates imposed by employers, one that pits the individual rights of workers against employers' health and safety concerns amid a pandemic that has dragged on for almost two years.
Leading labour and employment lawyers told The Globe and Mail that cases involving the termination of unvaccinated employees hinge on a number of factors, including whether employees are required to come into work, details of an employee's initial hiring contract and whether the employee is unvaccinated on grounds other than medical or religious ones.
"I have never had, in my 20-year career, so many calls, e-mails, queries about a single issue as I have about employees being let go or put on indefinite leave because of a company vaccine mandate," said Lior Samfiru, co-managing partner at the Toronto-based labour and employment law firm Samfiru Tumarkin LLP.
Shaun Parker, a Calgary-based partner at the Bay Street law firm Osler, Hoskin & Harcourt LLP, told The Globe that he too has started to see a wave of firings of employees who refuse to get vaccinated. "We're seeing this mostly in the private sector. These employees are now engaging counsel and trying to pursue severance pay."
Mr. Samfiru, who represents employers and employees, told The Globe his firm is currently handling hundreds of cases involving employees being fired for their vaccine status. In almost all of them, employees were terminated with cause, meaning they were denied severance. "There have been thousands of people that have been put on unpaid leave or flat-out terminated without compensation. It's a huge issue and I think a lot of employers do not understand the legalities of it," he added.
Whether or not an employee can be fired for not adhering to an employer's policy on vaccines is a complex issue, lawyers say, complicated by the fact that there has been no definitive court decision in Canada on how vaccine mandates can be enforced in workplaces.
"The question we are all trying to answer is, can an employer, in a non-unionized setting terminate an employee with cause for not getting vaccinated? In my view, they cannot, except in very specific circumstances," said Lai-King Hum, founder of Hum Law, a boutique law firm in Toronto that deals exclusively with labour and employment issues.
Many employers in Canada began imposing vaccine mandates last fall, encouraged by public-health guidelines about the efficacy of the COVID-19 vaccines against infections and severe disease. As deadlines for being fully vaccinated passed (for most employers, the requirement means getting two shots of vaccine), employee terminations started. Approximately 20 per cent of Canadians above the age of 5 are not fully vaccinated.
Last week, the City of Toronto fired 461 employees for not complying with its vaccine mandates. The Toronto Transit Commission also announced this week it would terminate 354 employees who refused to be vaccinated.
The Globe contacted more than 30 employers that had instituted mandatory vaccinations - including Canada's five largest banks, most major law firms, insurers and accounting firms - to understand how the policies were being applied to employees who chose not to get vaccinated without a reasonable medical or religious exemption. Most employers declined to specify if they had or would terminate unvaccinated employees.
"The complication that employers are starting to realize is if your employment agreement did not state from the very beginning that vaccines are compulsory, then you would likely have to pay an employee if you want to terminate them. That cost adds up," Ms. Hum said.
For non-unionized employees, the question for the courts is whether unvaccinated employees should be awarded damages in the form of pay. In a union setting, workers could potentially be reinstated into their jobs if an arbitrator rules in their favour.
Some employers told The Globe they intended to terminate employees who did not get vaccinated. The law firm Gowlings WLG LLP said that non-compliance with its vaccine mandate without an approved exemption would result in "sanctions, up to and including termination of employment."
Insurer Canada Life, which employs more than 10,000 workers, said in a statement that employees who fail to "attest to their vaccination status or undergo rapid testing without a valid and documented human rights exemption" would be disciplined, "up to and including termination." Accounting firm KPMG Canada said that employees who refuse to get vaccinated for reasons other than medical or religious could be terminated for "just cause," implying that they could receive no severance. Those working exclusively from home however, do not require proof of vaccination.
Andrew Monkhouse, an employment lawyer in Toronto who is handling numerous cases related to vaccine firings, said he believes unvaccinated employees terminated with cause have an especially good argument if the employee can prove their unvaccinated status did not jeopardize the health and safety of a workplace. "I think you'd have exceptionally strong grounds if you work from home," Mr. Monkhouse said.
In Maple Ridge, B.C., a woman who worked from home was terminated without severance from her job as an accountant with Ducks Unlimited Canada - a non-profit that focuses on the conservation of wetlands - for not getting vaccinated "out of personal choice," court documents show. The woman, Andrea Marlene Horvath, is being represented by Mr. Samfiru's firm, and filed a lawsuit last week seeking damages worth up to 13 months of her six-figure salary.
"We always have to ask: What is the purpose of the policy? An employer will say, it is to keep the workplace safe. So how does the vaccine status of an employee who works from home impact that in any way?" Mr. Samfiru said.
Mr. Monkhouse points out that the vaccine mandate situation at workplaces is bound to become thornier as more and more vaccinated Canadian employees get infected with Omicron, the latest major COVID-19 variant. Early studies have indicated that Omicron, compared with previous variants, causes a significantly higher number of breakthrough infections among the vaccinated, even though this group tends to get less severely ill than unvaccinated individuals.
"There's a completely different moral imperative in forcing someone to get a vaccine when the vaccine's primary benefit is for that person's own safety, as opposed to the safety of others," he said.
While there are still no court decisions on the implementation of vaccine mandates in non-unionized workplaces, there are a number legal decisions in Ontario involving unionized employees that offer some insight into how these cases might play out in the courts.
In November, the Power Workers' Union - the main union for electrical utility employees in Ontario - filed a grievance against the mandatory vaccine policy of the Electrical Safety Authority, a provincial body, alleging the policy represented a significant "over-reaching exercise of management rights," and violated the privacy of employees.
The arbitrator ruled in the union's favour, arguing that because vaccine mandates were never part of the collective agreement, there could be no legislated requirement that ESA employees be vaccinated, regardless of the fact that Canada is subsumed in a global pandemic. The arbitrator, in fact, wrote in his decision that vaccinating the population was "necessary in order to secure the fragile health care system and eventually put this pandemic behind us," but that notion could not override the collective agreement.
On the contrary, an arbitrator ruled against a mandatory vaccine grievance filed by the United Food and Commercial Workers union against the employer, Paragon Security, because it was stated in the UFCW collective agreement, years before the pandemic, that vaccinations and inoculations were necessary for workers.
"It's more clear cut for unionized employees because you have the collective agreement to rely on," Ms. Hum said. "But I think eventually there will be a case that goes to court that sets a precedent on this issue."
Comment: See also:
Veteran actor fired for refusing Covid-19 vaccine sues ABC
Navy commander fired for refusing to get COVID vaccine
Thousands of US intelligence officers refusing Covid-19 vaccine mandate risk being fired
Australians fired for refusing Covid vaccine search social media for 'welcoming' employers
Iowa's GOP governor signs bill allowing those fired for refusing Covid-19 vaccine to get unemployment benefits
DeSantis woos police fired over vaccine mandates, dangles $5k bonuses to move to Florida
Dozens of top nuclear scientists with 'highest security clearances' being fired from Los Alamos Lab after vax mandate
Nefarious activity by employers against their employees is orchestrated from the top.
A ruling in favour of the employee would in effect be a home goal committed by the Courts.
Mo Hit · 2022-01-14T12:58:08Z
Winternights3 I'd like to think that just as employees in a corporation are made up of individuals, mind you - the majority just drinking the cool-aid, that there may be one or two that are just waiting for the opportunity to break-out and do what they think, feel, and know is the right thing to do - even if done subtly. Like the Insurance agent who actually is helping the client instead of forever ripping them off.
I can't remember what movie that's from. When an agent tells someone to fill out a certain form and to bring it to a certain dep't in order to avoid some sort of penalty.
life · 2022-01-15T01:00:45Z
Mo Hit [Link]
and more to the point... "a company is like an enormous clock..." [Link]
Mo Hit I've been a maverick most my adult life, yes I've climbed the ladder and secured many management positions but I've never kissed arse.
I looked after all those who worked for my employer, encouraged them and helped them realise their potential.
I've slammed my fist down many times during Management meetings and told my seniors where to shove their nonsense. I've ploughed in to save those who were taking a beating whilst others looked on and have the scars to prove it but now I'm retired and that was yesterday.
Helping others is rewarding and I'm proud of all those I've worked alongside.
life Thanks for the links! I never remembered the clock analogy but makes total sense of what they're trying to make of society - "cogs that fit and cooperate by design"
Winternights3 You and I are in the same boat. I' consider myself a Maverick too who's always marched to my own beat. Worked in 4 different industries, climbing in each post and only leaving b/c I wouldn't fit in and accept the mediocratic norms.
I'm looking to start a Life Coaching business in the spirit of what you just stated, 'encourage ppl/ to realize their own potential'.
I'm currently in a Tech start-up but give myself a 6-8 month shelf life before they have to make a tough decision for their company. It sounds like we're cut from the same cloth. Helping others is it's greatest reward and it only can happen once you help yourself in the same manner. I'm happy that we have connected albeit online. I rarely come across others with the same sentiments.
life and of course, that only exists in a cartoon movie!
Mo Hit Life and its dynamics becomes also tangible as age brushes you with a wisdom? That eluded you in one's earlier years.
I truly wish you well in your coaching of others, that need a delicate hand to realise their potential.
Respect Winternights3.
Winternights3 That's so interesting you mention that. I was listening to Bob Marley the other day, specifically 'Get up, Stand up' and it resonated with me on a whole different level as I'm starting to understand Rights vs. Privileges. And I had the exact thought of how the lyrics(wisdom) have a different affect and effect depending on your understanding. This came on the heels of listening to a podcast speaking of Standing for your Rights. That led to a thought of how time is cyclical and essentially we repeat things but process and handle them differently at diff. stages of our development/growth.
Respect to you, as well!
life ·
Mo Hit
· 2022-01-15T18:54:19Z
ReRan · 2022-01-14T14:03:53Z
I only hope the courts do the right thing, like look at the real science, maybe?
Gator · 2022-01-14T16:21:31Z
Canada keeps making the international news for ALL the wrong reasons ! It is laughable to use reasoning of 'fragile health care systems' against person not wanting the vax. It appears as government mismanagement of the Corona crisis, is the source of the fragility of the health care system.
Demore · 2022-01-14T19:55:26Z
Gator '' It appears as government mismanagement of the Corona crisis,...''
Given that Canada manages the covid bs in lock step with the rest of the planet would you be so kind as to explain how the crisis is being mismanaged in Canada.
alexal60 · 2022-01-14T16:26:44Z
I really thought, after my many travels to CANADA, Montreal, Toronto and Ottawa, that all the people was at the TOP of the civilization ,,,,,,,,,,,,, but now I see, that many of them are just ZOMBIES, as in Australia, New Zealand, and other COLONIES of UK............
I ask: but what happen to you???????????????????????
alexal60 of course, a part of Canada is still a Colony of France........................, the real OWNERS , Indians Natives, was exterminated.........., at least, some of them are ALIVE, may be in GULAGS............................
Who rules in CANADA????????????
alexal60 "Who rules in CANADA????????????"
answer: its puppets all the way down !!
Good Optics · 2022-01-14T16:28:37Z
if the employee can prove their unvaccinated status did not jeopardize the health and safety of a workplace. "I think you'd have exceptionally strong grounds if you work from home,"
"Your honour, my client is just sure that employees working from home can and will infect other employees, working from home or not, with the scourge demonstrated by now to have >99.9% recovery rate and do so by Zoom or by retrieving documents left in or delivered by Canada Post to their at-home mailboxes. The defense rests its case."
mediumfoot · 2022-01-15T01:52:10Z
Good Optics There's a new market opening up for germicidal paper and envelopes. Ultraviolet light or ozone might be used to sterilize incoming or outgoing mail. A new appliance no bigger than a breadbox...
Global economy heading for 'Mother of all' supply chain shocks as China locks down ports
US official threatens Russia with 'sharp pain' inflicted 'very fast'