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HomeMy WebLinkAboutLagace et al 24-09-23IN THE MATTER OF AN ARBITRATION B E T W E E N: LAKERIDGE HEALTH (“the Hospital”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“the Union”) AWARD Before: Mark Wright, Arbitrator Re: COVID-19 Immunization Policy and Program Individual Grievances Appearances For the Employer: Erin R. Kuzz, Counsel For the Union: Indika Chandrasekara, Regional Grievance Officer Hearing Dates: March 22, 2024, and September 19, 2024 Introduction 1. The following award resolves several outstanding individual grievances all relating to the COVID-19 Immunization Policy and Program that the Hospital implemented in September of 2021 2 (“the COVID Vaccination Policy”). The parties proceeded by way of mediation/arbitration and asked me to provide a bottom-line decision. 2. By way of background to this award, the parties conducted an earlier day of mediation with me on March 22, 2024, at which time Minutes of Settlement were negotiated that successfully resolved many of the outstanding COVID-19 grievances between the parties (“the MOS”). The MOS contemplated that any individual grievors who did not sign a release pursuant to the MOS would have their grievances decided by me in an expedited arbitration process to be determined by the parties. 3. There are 5 individual grievors whose grievances have been referred to me in this process: Natalie Lagace (“Lagace”), Nancy Dowson (“Dowson”), Lisa DeBeer (“DeBeer”), Akosua Dwumaah (“Dwumaah”), and Rachel Wakaluk (“Wakaluk”). Collectively, there are 9 grievances before me (“the grievances”). 4. The Union contacted, or at least attempted to contact, all the grievors in advance of the hearing, but none of them attended. Lagace, DeBeer, and Dwumaah never responded to the inquiries made by the Union. Dowson had previously advised the Union that she wanted to proceed to hearing but failed to respond to more recent communication. The Union spoke to Wakaluk as recently as Friday, September 13, 2024, urging her to attend the hearing. Wakaluk said that she would get in touch over the weekend to advise whether she intended to participate in the hearing. The Union heard nothing from her over the weekend. It emailed Wakaluk again on Wednesday, September 18, 2024, the day before the hearing, but had heard nothing back from her by the time the hearing commenced. 5. Notwithstanding the non-attendance of the grievors, the parties proceeded with the mediation/arbitration. I was provided with a Book of Documents and Authorities upon which the parties made submissions. Based on those materials and submissions, I have decided that the grievances before me should be dismissed. Brief reasons are provided below. 3 Lagace 6. Lagace filed a grievance challenging the reasonableness of the COVID Vaccination Policy and that the COVID-19 Vaccination Policy constituted discrimination and harassment under the Ontario Human Rights Code (the “Code”) (2021-0348-0077, “the Lagace grievance”). Neither party provided particulars nor led evidence to suggest that Lagace had sought a Code-based exemption. The COVID Vaccination Policy is the same policy that was found to be reasonable in Arbitrator Herman’s leading decision in Lakeridge Health v CUPE, Local 6364, 2023 CanLII (ON LA) (Herman) (“Lakeridge Health”). Moreover, this Union agreed that the COVID Vaccination Policy was reasonable in a subsequent award by Arbitrator Herman, Lakeridge Health v OPSEU, Local 348, 2023 CanLII 61431 (ON LA) (Herman) (“Lakeridge Health and OPSEU”). 7. I find that these authorities are highly persuasive not only because they are well reasoned, but also because one of them involves the parties to this mediation/arbitration. Based on these authorities, I find that the COVID Vaccination Policy is reasonable. The Lagace grievance is therefore dismissed. Dowson 8. Dowson also filed a grievance challenging the reasonableness of the COVID Vaccination Policy and that the COVID-19 Vaccination Policy constituted discrimination and harassment under the Code (2021-0348-0081, “the Dowson grievance”). Similarly, neither party provided particulars nor led evidence to suggest that Dowson had sought a Code-based exemption. For the same reason that the Lagace grievance was dismissed, the Dowson grievance is dismissed. DeBeer 9. DeBeer filed three grievances: the first alleging that the COVID Vaccination Policy was unreasonable; the second alleging a failure to accommodate under the Code; and a third seeking reinstatement to employment (2021-0348-0073, 2021-0348-0088, 2021-0348-0090, “the DeBeer grievances”). DeBeer resigned from her employment on October 27, 2021. Prior to DeBeer’s resignation she had submitted a vaccination exemption on October 18, 2021, which was denied 4 by the Hospital. These grievances must be dismissed on their merits; like the Legace and Dowson grievances, the challenge to the reasonableness of the COVID Vaccination Policy must fail, and like the Dwumaah and Wakaluk grievances discussed below, the termination grievance lacks merit. However, DeBeer resigned from the Hospital effective October 27, 2021. These grievances are therefore moot and are primarily dismissed on that basis. 10. In addition, DeBeer made no effort to respond to the Union’s effort to contact her about the hearing. While that may be consistent with the fact that she resigned her employment effective October 27, 2021, I find under the circumstances that the grievor has abandoned her grievances. Dwumaah 11. Dwumaah filed a grievance alleging that she was discharged without just cause on November 10, 2021, for being non-compliant with the COVID Vaccination Policy (2021-0348- 0118, “the Dwumaah grievance”). 12. The grievor received a letter of counsel and was put on unpaid leave on September 17, 2021, for being non-compliant with the Hospital’s obligation that she be either fully vaccinated or participating in weekly rapid antigen testing. The grievor received a written record of a verbal warning on October 4, 2021, for being non-compliant with the Hospital’s COVID-19 Vaccination Policy. Furthermore, on October 15, 2021, she was given a written warning and remained on unpaid leave because she remained non-compliant. On October 22, 2021, the period of unpaid leave continued, but now solely on the basis that she was not fully vaccinated (rapid antigen testing was no longer an available option at this point). She was expressly advised in the letter dated October 22, 2021, that if she did not have one dose of an accepted vaccine by October 29, 2021, her employment would be terminated. She was then terminated on November 10, 2021, for being non-compliant with the COVID Vaccination Policy. 13. In Lakeridge Health, Arbitrator Herman upheld the termination of employees who were non-compliant with the COVID Vaccination Policy. Moreover, in Lakeridge Health and OPSEU, Arbitrator Herman upheld the termination of an employee who was non-compliant with the 5 Hospital’s obligation that employees either be fully vaccinated or participating in weekly rapid antigen testing. 14. I find Lakeridge Health and Lakeridge Health and OPSEU are persuasive authorities under the circumstance. Based on those authorities, the Dwumaah grievance is dismissed. 15. I also find, for the same reasons outlined in the DeBeer grievance, that the grievor has effectively abandoned her grievance. Wakaluk 16. Wakaluk filed three grievances: the first alleging that the COVID Vaccination Policy was unreasonable; the second alleging that the grievor was improperly put on unpaid administrative leave because she was not vaccinated; and the third alleging that she was unjustly terminated from employment for being non-compliant with the COVID Vaccination Policy (2021-0348-0092, 2021-0348-0093, 2021-0348-0099, “the Wakaluk grievances”). 17. The grievor was placed on unpaid administrative leave effective October 22, 2021, where she was expressly advised that if she did not provide proof of having received the first dose of an accepted vaccine by October 29, 2021, her employment would be terminated on October 29, 2021. Her employment was then terminated by letter dated November 3, 2021. 18. Consistent with Lakeridge Health, and the decisions in the Lagace and Dowson grievances, Wakaluk’s grievance challenging the reasonableness of the COVID Vaccination Policy grievance is dismissed. 19. Consistent with Lakeridge Health and with Lakeridge Health and OPSEU, and with the decision in the Dwumaah grievance, Wakaluk’s grievances challenging her unpaid administrative leave and her termination are dismissed. Wakaluk had argued that she should not have been subject to the COVID Vaccination Policy because she was working remotely at the time of her termination. However, Arbitrator Herman expressly dealt with this argument in Lakeridge Health, finding that it was reasonable for the COVID Vaccination Policy to apply to employees who were working remotely as they might be required to come to the Hospital from time to time 6 for “workshops, training, meetings, and other purposes” (see paragraph 170). I agree with Arbitrator Herman on this point; it was reasonable for the Hospital to apply the COVID Vaccination Policy to Wakaluk even though she was working remotely at the time of her termination. This consideration does not change my conclusion that Wakaluk’s grievances challenging her unpaid administrative leave, and her termination are properly dismissed. 20. Wakaluk was recently in correspondence with her Union, which urged her to attend today’s hearing, which she declined to do. While Wakaluk’s attendance would not have changed the outcome in her grievances, it speaks volumes about her commitment to these proceedings. Dated at Toronto this 23rd day of September, 2024. Mark Wright--Arbitrator