Arbitrator Awards Compensation to Toronto Health-Care Workers Dismissed for Refusing COVID Vaccine

A health-care worker prepares a COVID-19 vaccine in a file photograph. Michael M. Santiago/Getty Images

An Ontario arbitrator has awarded termination and severance pay to 40 Toronto health-care workers who were fired for refusing COVID-19 vaccination.

Arbitrator John Stout made the decision in a case involving the Canadian Union of Public Employees Local 145 and the William Osler Health System (WOHS).

Stout said in his decision released Aug. 12 that although the hospital’s 2021 COVID-19 vaccination policy was technically lawful, his ruling considered the fact that the health-care workers didn’t act out of “malicious intent” when refusing vaccination.

“I find that the individual grievors who were terminated from their employment by the Hospital are entitled to termination and severance pursuant to the ESA. Specifically, an individual’s refusal to become vaccinated, in the circumstances at this workplace, does not amount to ‘willful misconduct, disobedience or willful neglect of duty,’” said the ruling.

The case included 82 individuals who filed grievances over being suspended or terminated for failing to comply with the hospital’s vaccination policy, according to the decision.

WOHS had argued that the workers were terminated “with cause,” and not entitled to termination or severance pay under the Employment Standards Act (ESA).

A policy was put in place on Nov. 7, 2021, that stated all WOHS hospital employees were required to have two doses of the COVID-19 vaccine.

Workers who did not comply were put on unpaid suspension or disciplinary termination, the arbitration document says. A total of 42 healthcare workers were suspended and 40 were fired.

The decision follows a similar outcome involving a case of nine Ontario nurses who were terminated for not receiving COVID-19 vaccination. In March, an arbitrator ruled their termination unreasonable, and said they should be reinstated.

The arbitrator in the case, James Hayes, said that the hospital acted reasonably by putting a vaccine policy in place. However, he said the nurses should have been placed on unpaid leaves of absence rather than fired for not complying with the hospital policy.

At the end of May, another arbitrator ruled that a London, Ont., nurse who was fired by the London Health Sciences Centre in Oct. 2021 for not being vaccinated should be reinstated.

Arbitrator Mark Wright said that while the union conceded the vaccine policy enacted by the health-care facility was reasonable, the nurse’s termination “lacked just cause.”

Nurse Jill Thompson, who was a child and youth counsellor at a children’s hospital, was fired on Oct. 22, 2021, for not complying with a mandatory vaccine policy that had been in place since Aug. 31, 2021.

Wright also directed that on Thompson’s employee file, the discharge be changed to a 30-day disciplinary suspension.