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Unvaccinated workers file unfair dismissal complaint – but lawyers say odds are slim

A wave of unvaccinated workers have filed unfair dismissal complaints to protest their employers’ vaccination warrants, but lawyers say courts are likely to prioritize public safety measures over the plight of fired employees.

Canadian employers began laying off unvaccinated workers in late October after a series of corporate titans – including many of the biggest banks, airlines, rail operators and automakers – warned employees over the summer that they only had a few months to be fully immunized or face penalties.

Since then, workplaces across the country have been pushed back by employees and their unions over vaccination mandates which they say violate their pre-existing agreements with their employers.

A Windsor hospital in November immediately fired 57 workers after refusing the vaccine. Earlier this month, the city of Toronto laid off more than 450 employees for failing to meet its vaccine mandate, imposed last August.

Today, amid a massive backlog in the court system, lawyers say it will likely be months before decisions are made on pending disputes between employees and employers.

Howard Levitt, senior partner at Levitt Sheikh, says he suspects the courts will rule on the employer’s side in most cases.

“When all levels of government, all the chief medical officers of health from coast to coast to coast and all serious members of the medical and scientific community say the road to safety and exit from the pandemic is through vaccination , it is extremely unlikely. that a court will disagree and require the employer to pay damages for wrongful termination if it terminates the employee for refusal, ”Levitt said.

“If these workers have to deal with other people, be they co-workers, customers, suppliers or members of the public, and the employer has a mandatory vaccination policy, employees have a very weak.”

Already, some arbitrators and judges have rejected grievances related to vaccine mandates.

A labor arbitrator on Wednesday ruled Maple Leafs Sports and Entertainment had the right to put a Scotiabank Arena employee on leave in November for refusing to disclose his vaccine status. In December, a trial judge rejected a request by Local 113 of the Amalgamated Transit Union, which represents TTC employees, to suspend the transport commission’s vaccination policy, arguing that the exodus of employees could create service disruptions.

In the TTC decision, the court noted that, “while the planned service cuts are regrettable, the potential for unvaccinated workers to spread COVID-19 to co-workers or passengers is a risk that the TTC shouldn’t. not have to accept. This is a risk that goes against its obligation to create a safe workplace for its employees and a safe means of getting around town for its users.

Some employment lawyers say employees can argue for wrongful dismissal if employers haven’t offered reasonable alternatives to dismissal, such as remote working.

“On the one hand, unfair dismissal complaints, you get anti-science and anti-vaccine arguments. But on the other hand, you get more sympathetic individual requests for exemptions or accommodations – circumstances where, for example, remote working options are really available but the employer is unwilling to go. Said Danny Kastner, employment lawyer and partner at Kastner Lam LLP.

It could be months, or even years, before the many disputes over vaccination mandates are fully resolved. Canadian courts have faced significant backlogs amid lockdowns and restrictions related to the pandemic, and lawyers say wrongful dismissal cases are unlikely to be a priority.

“In reality, I can’t imagine any of these cases going to court until the summer,” said Elisha Jamieson-Davies, lawyer at Hicks Morley LLP. “And even that could be a pretty aggressive schedule.”