HomeMy WebLinkAboutKennelly 24-10-30
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IN THE MATTER OF AN ARBITRATION BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the “Union” or “OPSEU”)
- And -
FANSHAWE COLLEGE
(the “Employer” or the “College)
Re: Grievance of Michael Kennelly
BEFORE Norman Jesin Arbitrator
FOR THE UNION Arielle Lewis
Ontario Public Service Employees Union
Grievance Officer
Elizabeth Adeseha
Ontario Public Service Employees Union
Grievance Officer
FOR THE COLLEGE Lisa Meyer
Counsel
Abiola Akinyemi
Counsel
HEARING October 29, 2024
The Parties
1. Fanshawe College is a college of applied arts and technology established under the
Ontario Colleges of Applied Arts and Technology Act, 2002. It is one of Ontario’s
largest colleges with four campuses in London, Simcoe, St. Thomas and Woodstock.
The College provides learning opportunities to over 55,000 students per year and
offers over 200 programs across many disciplines, including arts, media, design,
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technology and skilled trades, business, information technology, culinary, health and
human services.
2. The Union is the bargaining agent for the College of Applied Arts and Technology –
Academic (CAAT-A) Bargaining Unit, which is defined pursuant to the Colleges
Collective Bargaining Act.
3. OPSEU Local 110 represents all Full-Time and Partial-Load Professors, Counsellors
and Librarians at Fanshawe College and has approximately 1,200 members.
COVID-19 Pandemic
4. The COVID-19 pandemic is an ongoing global pandemic of coronavirus disease
2019 (i.e., COVID-19) caused by a virus known as severe acute respiratory
syndrome coronavirus 2 (“SARS-CoV-2”). The virus causing COVID-19 first
emerged in late 2019.
5. In response to the growing global spread of COVID-19, the World Health
Organization (“WHO”) declared a Public Health Emergency of International Concern
on or about January 30, 2020 and a pandemic on March 11, 2020.
6. Effective March 18, 2020, College classes were moved to an online delivery and no
classes were assigned in person.
Instructions Issued by the Ministry of Health’s Office of the Chief Medical Officer of
Health (“OCMOH Instructions”) and Measures Introduced to Respond to Omicron
7. In or about August 2021, concerns grew about a significant wave of COVID-19
cases driven by the Delta variant.
8. On August 30, 2021 the Office of the Chief Medical Officer of Heath (OCMOH)
issued instructions to establish mandatory vaccination policies in the enumerated
post-secondary institutions [TAB 6].
9. Colleges of Applied Arts and Technology are among the list of organizations covered
by the OCMOH instructions.
10. Under 2(2.1) of Schedule 1 and Schedule 4 of O. Reg. 364/20: Rules for Areas at
Step 3 and at the Roadmap Exit Step under the Reopening Ontario (A Flexible
Response to COVID-19) Act, 2020 (ROA), the person responsible for a business or
organization that is open shall operate the business or organization in compliance
with any advice, recommendations and instructions issued by the OCMOH.
11. The OCMOH Instructions issued on August 30, 2021 stated in part:
Every Covered Organization must establish, implement, and ensure
compliance with a COVID-19 vaccination policy requiring its employees, staff,
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contractors, volunteers, and students (herein referred to as “Required
Individuals”) who attend campus to provide:
a) proof of full vaccination against COVID-19; or
b) written proof of a medical reason, provided by a physician or
registered nurse in the extended class that sets out: (i) a documented
medical reason for not being fully vaccinated against COVID-19, and
(ii) the effective time-period for the medical reason; or
c) proof of completing an educational session approved by the
Covered Organization about the benefits of COVID-19 vaccination
prior to declining vaccination for any reason other than a medical
reason…
Fanshawe College Policy and Faculty Vaccination
12. On August 03, 2021, the College circulated a Corporate Communication email
stating in part that employees who are not required to be on campus will continue to
work remotely until further direction is received. The email also stated that the
College was beginning to consider a gradual return to campus. [TAB 5]
13. On August 30, 2021, the Ministry of Health issued the OCMOH Instructions.
Instructions. [TAB 6]
14. On September 02, 2021, the College circulated a Corporate Communication stating
that the College would be implementing a COVID Vaccination Policy [TAB 7]. Some
of the key features of the policy announced in that email included:
• Anyone coming to campus must be fully vaccinated by November 5, 2021…
• After November 5, those who are not fully vaccinated and do not have an
approved exemption will not be permitted on campus.
• Based on direction from the Ontario Government, there are no faith-based or
Human Rights Code related exemptions allowed.
Attached to the email was a document outlining Frequently Asked Questions (FAQ)
about the College’s upcoming vaccination policy [TAB 8].
15. In the FAQ document, one of the questions and answers read as follows:
• Are there exemptions for certain faiths or based on the Human Rights
Code?
• The Government of Ontario has advised that there are only two medical
exemptions: severe reaction to a component of the vaccine or myocarditis.
[TAB 8, pg 164]
16. Notwithstanding the September 02 communication, the College’s COVID Policy was
updated as of September 22, 2021 to permit individuals to seek an exemption on the
basis of creed in accordance with the Human Rights Code.
17. For the Fall 2021 semester, the College was operating on a hybrid basis with certain
classes operating in person and certain classes operating virtually.
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18. In response to the OCMOH instructions, the College approved policy P105: COVID-
19 Vaccinations (the ”Policy”), effective September 22, 2021. [TAB 9]
19. The Parties agree that the Policy was in effect at all material times of the Grievance.
The Policy remained in effect until it was suspended effective April 27, 2022.
20. The Policy’s stated purpose is to “provide direction to Fanshawe’s community
members regarding the conditions under which individuals will be permitted on
Fanshawe’s campuses in order to protect them from the spread of COVID-19.” It
applied to “all Fanshawe community members; students, employees, clients,
contractors, visitors and/or any other attendees on Fanshawe campuses, and
affiliated facilities.” [TAB 9]
21. Pursuant to s. 5.1.1 of the Policy, “Individuals must be fully vaccinated by November
5, 2021 or have an approved medical exemption … or an accommodation under the
Ontario Human Rights Code…”. Under the Policy, “individuals” were defined as a
“group [that] includes students, employees, clients, and contractors who enter
Fanshawe College Campuses”. [TAB 9, pg 171]
22. Section 2.3 of the Policy stated that: “Despite any other provision in this Policy, the
College is committed to human rights accommodation up to the point of undue
hardship and will comply with its duty to accommodate under the Ontario Human
Rights Code with respect to any Code based ground. Such situations will be
assessed on a case-by-case basis.” [TAB 9, pg 168]
23. Section 6.1 of the Vaccination Procedure under the Policy, it stated that “Individuals
will submit a request for an accommodation under the Ontario Human Rights Code
on the proscribed form. Additional information may be requested to support the
process. Accommodations may be measures other than being granted access to
campus. [TAB 9, pg 172]
24. On September 23, 2021, the College circulated a Corporate Communication [TAB
10] regarding the implementation of the Policy which stated in part that “all
employees, students, visitors and contractors who come to any Fanshawe campus
must be fully vaccinated by Friday, November 5, 2021.” This communication also
stated that “all employees must register proof of vaccination”. The email provided
instructions to Employees to confirm their vaccination status via a software platform
called “Verified”, developed by Synergy Gateway. The email also included a section
called “Exemptions” which provided a link to a religious accommodation form.
25. On the College’s Creed/Religion Accommodation Request Form (the “Form”), it
stated that “Fanshawe will consider on an individual basis requests for
accommodations from students, employees, and contractors on creed/religion
grounds based on beliefs which are contrary to [the Policy].” The form also stated in
part:
• “Requests for creed/religion accommodations will be considered upon
completion and presentation of this form.
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• A creed/religion accommodation may be granted upon receipt of required
documentation signed and certified by a creed/religious leader.
• The duration of the accommodation is at the sole determination of Fanshawe
College. Individuals approved for an accommodation may request
recertification, if required.” [TAB 13]
The Grievance
Grievance Form
26. On November 10, 2021, the Union filed on behalf of its member Michael Kennelly
(the “Grievor”) a timely grievance (#2021-0110-0008) bearing the following
statement of grievance:
“I grieve that Fanshawe College has failed to accommodate my religious
beliefs; further, I grieve that in its response to my accommodation request,
the college has not respected the dignity of my beliefs. In so doing, without
restricting the generality of the foregoing, the college has violated Article 4 of
the Collective Agreement, the Ontario Human Rights Code, and any other
relevant CA articles and/or laws.”
Background
27. Michael Kennelly, the Grievor, teaches at Fanshawe College’s London Campus. He
has taught at the College for approximately 12 years. He is currently a full-time
professor in the School of Transportation Technology and Apprenticeship and is the
program coordinator for the Autobody and Collision Damage Repairer
Apprenticeship. At the time of the Grievance, the Grievor was also the program
coordinator for the Autobody Repair Techniques program.
28. On October 27, 2021, the Grievor submitted the Form completed by him and his
creed/religious Leader, Reverend Joseph Cambell. [TAB 13]
29. The Form instructed the creed/religious leader to provide details on the following:
1. The basis of the applicant’s faith/beliefs which are contrary to being
vaccinated against COVID-19.
2. How long the applicant has been a member of the creed/religion.
3. How long the applicant attended services and paid any applicable fees.
4. Any other relevant information. [TAB 13]
30. Reverend Cambell provided the following explanation:
Among many other tenets, in our faith we believe that the death of any human
being by any means except through natural causes is sin and a desecration
of the Image of God. (Since all humans are made in His image). Killing an
unborn baby and then using any parts of their body in any way, including but
not limited to: research and/or any medical treatment procedure is sin.
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Michael's conscience convicts him before God that receiving any of the
current COVID-19 vaccines violates this firmly held religious conviction.
Michael has grown up in an actively practising Evangelical Christian home up
to adulthood. He made a personal commitment to the faith over 12 years ago.
The expression of his religion involves participation in a local church called
London Christian Fellowship International (LCFI), as well as personal ministry
beyond that organization. Michael has received ministry training under Family
Foundations International and pastors a home based church community.
Michael has walked in this religious faith with increased commitment from the
date of his adult baptism over 12 years ago. He has served as religious
leader in his church community for many years and currently serves as
president of the board of London Christian Fellowship International (LCFI).
Aligned with our religious belief, Michael has faithfully contributed to the
financial resources of his church community by donating roughly a tenth of all
his income for over 11 years.
Michael is committed to the safety and protection of all people. He cannot in
clear conscience before God violate his religious beliefs by accepting medical
treatment of a COVID-19 vaccine that violates the rights of an unborn human
baby. [TAB 13]
31. The Grievor checked the box on the Form authorizing Fanshawe College “to speak
my creed/religious leader about my case and to request from the leader
documentation that confirms my requirement for a creed/religion accommodation for
the COVID-19 vaccine.” [TAB 13]
32. With his submission, the Grievor included a pdf attachment where he explained the
basis for his creed/religious accommodation request. It stated:
To whom it may concern,
My name is Mike Kennelly, and I have held the position as both a professor
and the program coordinator for the auto body program at Fanshawe College
for the over 10 years. I have found great satisfaction in contributing to the
College’s programs, and the lives of my students during this time, and have
sought to serve my colleagues and the department as a whole to the best of
my abilities. It is my deep desire and, I believe, part of my calling to continue
in my employment at Fanshawe College.
After much careful thought and soul searching, I am applying for a religious
exemption to the COVID-19 vaccine under the policy P105 based on my
sincerely held religious beliefs, and ask that you review this request with an
open mind.
I would like to take a moment to communicate a small portion of my religious
activity and to add background to my application. My parents were religious
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leaders of a non-denominational Christian Church for the majority of my life. I
spent most of the Sundays of my childhood participating in church services,
weekly outreach and community service events in London, surrounding areas
and throughout Ontario. Watching and seeing this as an example is what
launched me at a young age to pursue a personal, intimate relationship with
God. I was doing children’s ministry and leading Christian men’s groups in my
late teens and early 20’s, and become a deacon at our church. I truly believe
acquiring fulltime employment at the school was a direct leading from God
and is a precious season in my life. A number of years ago (prior to COVID-
19) our corporate church meetings transitioned to a model of smaller house
church meetings with a monthly corporate meeting of all the house churches.
My wife and I have been leading one of these house churches for the majority
of that time, only taking a break for a short season when our last child was
born. In addition to leading the house church for three Sundays of the month,
I lead the monthly larger congregational meeting on a rotating basis. I’m also
currently the President of our church board, overseeing our church
organization and corporation. Outside of my positions at the church, I partake
in leadership and spiritual training, and in missionary endeavors put on by
various Christian ministries and groups, provincially, nationally and
internationally. My religious beliefs and relationship with God have shaped my
entire life.
I have full respect for medical advancements and am proud of our healthcare.
I also believe that life is sacred and that we are called to diligently steward
our bodies. The bible teaches that human life begins at conception, and I am
convinced that this is true (Genisis 4:1, Jeremiah 1:5, Psalm 139:14, Luke
1:40). Unfortunately, all of the currently approved COVID-19 vaccines have in
their research and development and/or testing and/or production used
electively aborted fetal cell lines. I sincerely believe that this is an unethical
practice, and to take the vaccine would cause me to violate my religious
beliefs, convictions and my conscience. My religion states that my body has
been made into a temple of God, and that He is to be honored in that temple
(1 Corinthians 6:20). I cannot willingly inject a substance into my body that
can in any way be linked to the remains of an electively aborted human being,
and continue to uphold this principle that God is being honored in my body. I
have held this belief consistently for my personal vaccine and medical
decisions prior to the pandemic.
The COVID-19 vaccine mandate implemented by Fanshawe College has put
up a barrier to my employment, and it is my hope that I have made this clear
in my explanations.
To conclude, I am held accountable by God and to God. I am called to honor
God by living in obedience to His word and His leading in my life. I strongly
believe that receiving one of the current Covid-19 vaccines would be a direct
conflict and violation of my religious belief. [TAB 14]
33. Upon review of the Grievor’s submission, and having regard to the statement issued
by the Human Rights Commission of Ontario indicating that a “singular belief” in
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opposition of the COVID-19 vaccination did not garner creed protection, the College
undertook a process whereby it conducted research into the tenets of the
Evangelical Christian faith. Following this review, the College believed that the
central tenets of the Grievor’s Evangelical faith did not preclude him from receiving
the COVID-19 vaccination.
34. On November 01, 2021, the College provided the Grievor with a letter denying his
request for an accommodation. The letter stated:
Michael,
Thank you for submitting your request for accommodation and for sharing
your perspective and rationale for not receiving the COVID-19 vaccination.
You identified creed as the protected ground for which you are seeking an
exemption. We have reviewed the information you have provided and given it
due consideration. Although we accept that you have identified a creed with
which you belong, we are unable to accept that the tenets of your creed
preclude you from receiving the COVID-19 vaccination and, as a result, the
organization is not able to grant you an exemption from the COVID-19
Vaccine
Policy.
Your exemption request based on creed is not approved. You are expected to
comply with the College’s Vaccination Policy (P105) in order to be eligible to
attend work on campus effective November 5, 2021.
Sincerely,
Jeff Low
Chief Human Resources Officer [TAB 15]
35. To the Grievor’s knowledge, the College did not request additional information from
Reverend Campbell.
36. The College also did not request any further information from the Grievor about his
application.
37. On November 24, 2021, the Grievor drafted another document further detailing his
faith-based views on the vaccine at the time:
I would like to submit this as an addition and expansion to my previous
submission.
The Bible, in the writings of the apostle Paul, teaches the believer that the
body is the “temple of the Holy Spirit...you do not belong to yourself, for God
bought you with a high price. So you must honor God with your body.” (1
Corinthians 6:19-20) Over the years, as I have and do continue to grow in my
faith, God has revealed this to be paramount in my life as I do and have
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brought it to the Lord in prayer. As a living temple, I believe that I must protect
my body, and keep it holy, and that I must not put any harmful or unethically
derived substances into my body, nor take any action that unnecessarily risks
my health physically and/or spiritually. This is a belief that I observe daily in
my choice of diet and physical fitness, as well as engaging in other health
practices such as abstinence from smoking, recreational drugs, drunkenness,
pornography, and other addictive substances and behaviours.
I have informed myself of the risks and benefits of receiving a Covid-19
vaccine. I have learned that the Covid-19 vaccines available at this time carry
substantial risks including severe allergic reactions and death, and they have
warning labels from Health Canada for the conditions of myocarditis,
pericarditis, blood clots, and Bell’s Palsy. I personally have a family member
and very close friends that have had severe health issues stemming from the
vaccines.
Taking this vaccine with its known and unknown mechanisms is the same to
me as consuming any other harmful substances that my faith prohibits, and
as such, it would violate my conscience in doing so. The prophet Daniel and
his three colleagues in the Old Testament were “determined not to defile
themselves by eating the food and wine given to them by the king. Daniel
asked the chief of staff for permission not to eat these unacceptable foods.”
(Daniel 1:8) Like Daniel, I am also determined not to defile myself by taking
this vaccine and thus violate my conscience and religious beliefs.
I further rely on the following Christian Biblical references for what my faith
teaches me:
• As already mentioned, my body is the temple of the Holy Spirit.
Therefore, I must carefully consider how I treat my body. For this
reason alone, I cannot take this vaccine. (1 Corinthians 6:19) Further
instruction “whether you eat or drink, or whatever you do, (I should) do
it all for the glory of God.” (1 Corinthians 10:31) Taking this vaccination
is not, according to my religious belief, doing something to God’s glory.
• As previously stated above, however well-meaning government health
provisions are, they may conflict with my personal conscientious
convictions and when they do, I am to choose the latter. This is the
present case. (Daniel 1: 5-8) Even when government officials
disagree, I need to follow conscientious conviction. (Daniel 1:10)
• There can be differences of convictions in Christianity. This means
that other Christians even in my religious circles including others who
also hold positions of leadership may not be persuaded as I am on a
varying number of topics. My religious convictions are not based on
my fellow believers - they are between me and God given to me by the
Holy Spirit. Jesus’ death and resurrection as my Lord and savior has
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given me direct access to God and his will in my life through the Holy
Spirit. (Romans 14:1-13, 1 Peter 2:5-9)
• Likewise, every individual has to be fully persuaded in their own
minds. The evidence for me is not conclusive that this vaccine is safe
and is impurely derived and/or manufactured. I am not fully persuaded
in my own mind and therefore cannot conscientiously take this
vaccination. (Romans 14:4-5, 12)
• I am to yield to local and federal governments for conscience’s sake
(Romans 13:1-6), but in circumstances where the civil authorities
attempt to override conscience, I must obey God rather than man
(Daniel 3; Daniel 6; Acts 4:18-20; Acts 12:1-18). Taking this vaccine,
and also the mandates of it, are a violation of my conscientious
convictions and beliefs.
• My consciously made decisions are critical to walking with and not
grieving the Holy Spirits leadings for my life. Liberty and freedom of
choice play a vital role in God’s presence every day of my life. Where
the Spirit of the Lord is there is liberty and life and then I am offered
the pursuit true joy and to happiness. For me to be pressured to
accept the medical procedure or face loss of gainful employment is a
violation of this liberty and a denial of God’s active role in my life. (2
Corinthians 3:17)
• I am called to work heartily in whatever I do, as if I am working for
God. Therefore, my workplace whether online or in a building
becomes a worshipful act for me. Working is crucial to my act of
service to God. (Colossians 3:23)
Ownership and autonomy over the body and the ability to freely choose what
does or does not enter one’s body is a critical aspect of individual and
religious liberty. After considering the risks, benefits, alternatives, the use of
abortion-derived fetal cell lines, I have taken the matter to the Lord in prayer
and fasting and am convinced that I should not take a vaccine for Covid-19
and that to do so would violate my conscience and religious beliefs.
Thank you for your sincere consideration in granting me a reasonable
accommodation. [TAB 19A]
38. The College was not in receipt of this document as at the time it was prepared.
39. On December 14, 2021, the Grievor received an email [TAB 20] from Carl Mendoca,
Associate Dean, School of Transportation Technology and Apprenticeship, with an
attached letter [TAB 20A] from Mr. Low placing the Grievor on an unpaid leave of
absence starting in Winter 2022 for failing to provide proof of being vaccinated
against COVID-19.
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40. As a result of the College’s decision to implement the Policy such that all non-
vaccinated individuals would be placed on an unpaid leave of absence, the Grievor
was not assigned a workload effective January 1, 2022.
41. The College concedes that but for the leave of absence, the Grievor would have
been scheduled to teach exclusively online for the Winter 2022 Semester [TAB 3, 4].
The anticipated courses that would have been assigned were theory courses and
one course was an online research lab.
42. On March 1, 2022, the instructions issued by the OCMOH which made COVID‑19
vaccination policies mandatory in postsecondary education institutions were
revoked.
43. On March 10, 2022, Mr. Mendoca sent an email [TAB 23] to the Grievor with an
attached letter from Mr. Low confirming that the administrative leave ended as of
March 01, 2022 [TAB 22].
44. The Grievor was provided with a non-teaching assignment for the remainder of the
Winter 2022 semester and began working in person for the Spring 2022 semester
after the College revoked the Policy.
DECISION
45. The College agrees that Fanshawe College v Ontario Public Service Employees
Union, Local 110, 2024 CanLII 11422 (Grievance of Wing) applies to this case
and concedes that it was unreasonable to place the Grievor on an unpaid leave of
absence where remote work would otherwise have been assigned to him between
January 1, 2022 and March 3, 2022. As such, the College has agreed to
compensate the Grievor for his losses and acknowledges that this includes service,
seniority, and other credits he would have accumulated had he not been placed on
leave.
46. The Parties have asked me to determine the outstanding human rights issue: Did the
College err in denying the Grievor a creed-based exemption from the Policy?
47. Having heard the evidence and submissions of the Parties, I hereby determine the
matter as follows.
48. I accept that the College had good intentions when reviewing the Grievor’s October
27, 2021 request for an exemption.
However, I adopt the reasons of Arbitrator Herman in Public Health Sudbury&
Districts v Ontario Nurses’ Association, 2022 CanLII 48440 (ON LA) and
conclude that the College erred in its decision in failing to include the subjective
component of the applicable test when assessing the Grievor’s creed exemption
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request. In so finding, I conclude that College ought to have granted the Grievor’s
request for an exemption, the denial of which amounted to discrimination on the
basis of his faith.
49. I hereby issue a declaration that the College violated Article 4 of the Collective
Agreement and Section 5 of the Ontario Human Rights Code in failing to
accommodate the Grievor’s creed.
50. The grievance is allowed. As requested by the Parties the issue of the appropriate
remedy is remitted to the Parties.
51. I remain seized with respect to the implementation of this award, including the
appropriate remedy if the parties fail to agree.
Dated at Toronto, this 30th day of October 2024.
____________________
Norm Jesin, Sole Arbitrator