Arbitrator Upholds Mandatory Vaccination Policy but Finds Enforcement Mechanisms (Suspension and Termination) Unreasonable
Date: September 1, 2022
On August 26, 2022, Arbitrator Derek Rogers released Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 and City of Toronto in which he considered the reasonableness of the mandatory COVID-19 vaccination policy (Policy) of the City of Toronto (City).
The Arbitrator found that the Policy itself was, and remains, reasonable. However, he found that the enforcement mechanisms of the Policy (suspension and termination) were unreasonable. As a result, the City did not have just cause to terminate the employment of unvaccinated fire fighters pursuant to the Policy.
The City implemented the Policy effective September 7, 2021, and later updated it on October 6, 2021. The first version of the Policy stated that employees who failed to comply with the requirement to be fully vaccinated (two doses) may be subject to discipline, up to and including dismissal. The updated Policy stipulated that unvaccinated employees would be placed on an unpaid suspension, following which any employee who remained unvaccinated would be terminated with cause for refusal to comply with the City’s Policy.
Thirteen members of the Toronto Professional Fire Fighters’ Association (Association) were terminated for cause for failure to comply with the Policy. The Association brought a grievance, challenging the Policy.
The primary issue in dispute was whether the Policy was a reasonable exercise of management discretion.
Arbitrator Rogers considered the decision in FCA Canada (see our Case in Point of June 27, 2022), in which Arbitrator Nairn found that the employer’s mandatory vaccination policy was no longer reasonable due to the waning efficacy of having only two doses of the vaccine. As was the case with the City, the employer in FCA Canada did not require booster doses. However, unlike the case in FCA Canada, the City called two expert medical witnesses who each gave substantial evidence on the efficacy of vaccinations and the continued effectiveness of having two doses.
Arbitrator Rogers stated that Arbitrator Nairn’s decision may have been appropriate based on the evidence provided in FCA Canada. However, he stated that in light of the evidence before him, in this case, “it would be perverse and wrong to find here, as Arbitrator Nairn did, that ‘a COVID-19 vaccine mandate defined as requiring two doses (of a two-dose vaccine) is no longer reasonable…’”
Specifically, he noted that the City’s expert medical witnesses in the present case testified that an individual with two doses of a COVID-19 vaccine would be decidedly less likely to become infected than someone who was unvaccinated. Therefore, the City’s Policy requiring fire fighters to be vaccinated with two doses was reasonable.
Arbitrator Rogers considered the expert evidence, elements of the KVP test and the precautionary principle, among other things. He concluded that the Policy was reasonable to the extent it required fully vaccinated status (two doses) by the end of 2021 to be a condition precedent for a fire fighter to continue to report for work.
The Arbitrator then considered whether the enforcement mechanisms in the Policy were reasonable. He concluded the City had not established that suspension and termination of a non-compliant individual were necessary, stating that “the City has not made the case that the protection of the group — virtually all of its fire fighters, as well as other City employees, and the citizens of Toronto — requires anything more than the removal of recalcitrant employees from the active workforce.” The Arbitrator continued:
274. […] Enforcement mechanisms that do go beyond what is strictly necessary to accomplish the aims of the policy and in doing so invariably add disciplinary consequences that have nothing to do with the policy’s objectives should not be found to be reasonable. Here, the Employer did not attempt to establish that it could not accommodate objecting employees by placing them on an unpaid leave of absence as other employers have done. Rather, the City decided that the appropriate course of action was to take disciplinary steps and chose to announce what is a most coercive process on October 6, 2021. It would not suffice, it seems, that fire fighters incur the losses and difficulties arbitrators reasonably and realistically associate with unpaid leaves; these employees were to suffer the additional penalty of a significant disciplinary entry on their employment records followed by discharge.
306. The City submitted that it was reasonable for it to adopt a consistent enforcement framework. In my view, consistency does not trump reasonableness and being consistent in one’s approach to an issue will not render an unreasonable approach — the inevitable disciplinary suspension followed by the equally inevitable discharge for cause of still non-compliant fire fighters — reasonable.
Accordingly, Arbitrator Rogers held that the enforcement mechanisms of the Policy requiring disciplinary suspensions and discharge for non-compliance were unreasonable, despite the reasonableness of the Policy itself.
The matter was remitted to the parties to determine the further disposition of the issues arising from these findings.
Currently, there is no determination as to the remedy aspect of this case for employees who were suspended and/or terminated for failure to comply with the Policy. However, despite finding that the suspensions and terminations were unreasonable, a key takeaway for employers is that the City’s Policy itself was found to be reasonable.
As noted at paragraph 262, the requirement to be fully vaccinated with two doses as a condition precedent for the fire fighters to continue working was and remains reasonable. Therefore, even though the disciplinary measures were unreasonable, this does not necessarily mean they will be permitted to report for work.
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