London, Ontario –May 30, 2024
https://www.canlii.org/en/on/onla/doc/2024/2024canlii48714/2024canlii48714.html
Discussion: The Canadian Independent
Arbitrator orders reinstatement of unvaccinated London Health Sciences hospital worker, finds termination lacked just cause. London, Ontario – Arbitrator Mark Wright has ruled in favor of Jill Thompson, a former Child and Youth Counsellor at the London Health Sciences Centre (LHSC), who was terminated for not complying with the hospital’s mandatory COVID-19 vaccination policy.
The ruling, issued on May 30, 2024, found that while the hospital's vaccination policy was reasonable, the termination of Thompson lacked just cause. Jill Thompson, who had been employed at LHSC since 2003, was terminated on October 22, 2021, after she chose to remain unvaccinated against COVID-19 despite the hospital's mandatory vaccination policy.
The policy required all staff to be fully vaccinated by October 22, 2021, or face termination unless they had an approved medical or human rights exemption. Thompson, who had no prior disciplinary record, did not seek an exemption and adhered to regular antigen testing before the termination date. The union, Unifor Local 27, filed a grievance on Thompson’s behalf on the day of her termination, arguing that the hospital’s action was unjust and violated the collective agreement.
The case proceeded to arbitration, with hearings conducted on July 25, 2023, and January 11, 2024. Written submissions were provided by both parties in March and April 2024. Arbitrator Wright found the hospital's vaccination policy reasonable due to public health concerns during the COVID-19 pandemic but determined that termination was a disproportionate response to Thompson's refusal to get vaccinated.
He concluded that a lesser form of discipline would have been more appropriate. In his ruling, Wright stated, "The Hospital’s discharge of the Griever lacked just cause." He ordered Thompson’s reinstatement with a 30-day disciplinary suspension in place of the termination but did not award any further compensation or make any orders regarding back pay.
Overview
1. The Grievor was terminated effective October 22, 2021, because she chose to remain unvaccinated in the face of the Hospital’s mandatory vaccination policy (“the Policy”). The Union filed a grievance on the Grievor’s behalf dated October 22, 2021, (“the grievance”) alleging that the Grievor’s termination lacked just cause contrary to the collective agreement. The Hospital denied the grievance, and the case proceeded to arbitration before me.
2. The Union concedes that the Policy, which is still in operation, is reasonable. The Grievor remains unvaccinated.
3. A hearing was conducted on July 25, 2023, and January 11, 2024. The parties further provided me with written submissions dated March 19, March 26, and April 2, 2024.
4. For the specific reasons outlined below, I have found that the Hospital’s discharge of the Grievor lacked just cause. I have ordered that the Grievor be reinstated and that a 30-day disciplinary suspension be substituted for the discharge. I provide no further relief, and make no order as to compensation.
66. I have found that the Hospital had cause for discipline in this case, but that termination was excessive because the Grievor was not afforded the benefit of any progressive discipline. In the circumstances, I find that the appropriate disciplinary response – what the Employer should have done – consistent with the prevailing case law, was to have placed the Grievor on a 30-day disciplinary suspension, which I hereby substitute for the discharge.
67. The Union argues against reinstatement and for the payment of an enhanced severance package instead. In the alternative, it suggests that the Grievor should be paid termination and severance pay under the ESA. I reject both assertions. The evidence does not suggest that the employment relationship is irrevocably broken such that reinstatement is not the appropriate remedy. The Grievor has a relatively long, discipline-free, work record at the Hospital. The evidence suggests that she was a valued employee who was respected by her colleagues. She chose not to get vaccinated which is unquestionably her right.