Courts likely to prioritize public safety measures over the predicaments of terminated employees in most cases, say employment lawyers.
A wave of unvaccinated workers have filed wrongful dismissal claims in protest of their employers’ vaccine mandates, but lawyers say the courts are likely to prioritize public safety measures over the predicaments of terminated employees.
Canadian employers began firing unvaccinated workers in late October after a string of corporate titans — including several of the largest banks, airlines, railway operators and automakers — warned employees over the summer they had a matter of months to get fully vaccinated or face penalties.
In the time since, workplaces across the country have faced pushback from employees and their unions over vaccine mandates they say breach their pre-existing agreements with their employers.
A Windsor hospital, in November, terminated 57 employees on the spot after refusing the vaccine. Earlier this month, the City of Toronto fired more than 450 employees for failing to comply with its vaccine mandate, imposed last August.
Now, amidst a hefty backlog in the courts system, lawyers say it will likely be months before any rulings are made regarding ongoing litigation between employees and employers.
Howard Levitt, senior partner with Levitt Sheikh, says he suspects the courts will rule on the side of the employer in most instances.
“When all levels of government, all chief medical officers of health from coast to coast, and all of the serious members of the medical and scientific community say that the route to safety and getting out of the pandemic is through vaccinations, it is extraordinarily unlikely that a court will disagree and require the employer to pay wrongful dismissal damages if they fire the employee for refusal,” Levitt said.
“If these workers have to deal with other people, whether they be coworkers, customers, suppliers or members of the public, and the employer has a mandatory vaccination policy, the employees have a very weak case.”
Already, some arbitrators and judges have dismissed grievances related to the vaccine mandates.
On Wednesday, a labour arbitrator ruled that Maple Leafs Sports and Entertainment had the right to place an employee at Scotiabank Arena on leave in November for refusing to disclose their vaccine status. In December, a trial judge declined a request from the Amalgamated Transit Union Local 113, which represents TTC employees, to pause the transit commission’s vaccine policy, arguing the exodus of employees could create service interruptions.
In the TTC ruling, the court noted that, “while the service cuts contemplated are regrettable, the potential for unvaccinated workers to spread COVID-19 to co-workers or riders is a risk the TTC should not have to accept. It is a risk which is inconsistent with its obligation to create a safe workplace for its employees and a safe way of getting around the city for its riders.”
Some employment lawyers say employees can make a strong case for wrongful dismissal if employers have not offered reasonable alternatives to termination, like working remotely.
“On one end of wrongful dismissal claims, you’re getting anti-science and anti-vaccine arguments. But on the other end, you’re getting more sympathetic, individual claims for exemptions or accommodations — circumstances where, for example, remote work options really are available but the employer is unwilling to go there,” said Danny Kastner, an employment lawyer and partner at Kastner Lam LLP.
It could be months, if not years, before the score of litigation over vaccine mandates is fully resolved. Canadian courts have faced substantial backlogs amidst lockdowns and pandemic-related restrictions, and lawyers say the wrongful dismissal cases are unlikely to take priority.
“Realistically, I can’t imagine any of these cases getting to court before the summer,” said Elisha Jamieson-Davies, a lawyer with Hicks Morley LLP. “And even that might be a pretty aggressive timeline.”
Article from: The Star
Author: Jacob Lorinc
