Court Finds Sask. Refinery Justified in Firing 2 Workers Who Refused to Follow COVID Testing Policy

Positive (L) and negative COVID-19 antigen rapid tests are pictured in Calgary, Alberta, on Jan. 4, 2022. The Canadian Press/Jeff McIntosh

A Saskatchewan court has determined a Regina oil refinery was justified in firing two employees who refused to comply with the company’s COVID-19 testing policy.

Dallas Shuparski and Ward Rubin refused to comply with the 2021 workplace policy at Consumers’ Co-operative Refineries Ltd. (CCRL) in Regina. They were fired in January of 2022.

An arbitrator’s ruling that favoured Shuparski and Rubin was overturned by the March 5 decision issued by  Saskatchewan Court of King’s Bench Justice Richard Danyliuk.

Danyliuk laid out several reasons for disagreeing with the arbitrator, including that the policy was “minimally intrusive.” The justice noted the arbitrator said the policy was flexible compared to other companies’ actions at the time.

Employees did not have to be vaccinated, but were asked to get tested and provide the COVID test results to the employer, Danyliuk said, adding that “neither of these two employees had any good reason to refuse to comply with the Policy.”

“Here, two employees out of some 900 total believed they could refuse to comply with the Policy that their own union had deemed reasonable,” Danyliuk wrote. “Two employees were willing to jeopardize the health and safety of everyone else in that workplace. Two employees were given multiple chances to comply, multiple warnings, multiple stages of progressive discipline, and still insisted they were entitled to disobey a valid directive from their employer.”

Danyliuk said that the arbitrator failed to follow legal precedent.

“I find the arbitrator’s Decision that termination was not reasonable here to be an unsupportable, unreasonable decision,” he concluded.

Disciplinary Actions

The court document notes that Rubin was first put on a paid leave of absence on Nov. 17, 2021, after the refinery policy came into effect on Nov. 15.

Shuparski was put on paid leave on Nov. 15, 2021, and a two-week leave without pay on Nov. 25. A further three-day suspension was issued for Shuparski on Dec. 13. The court document notes later in December, the company placed Shuparski on another two weeks of unpaid leave.

Shuparski is said to have declined to comply with the policy based on his beliefs.

“He told his manager that he would not comply with the Policy because he ‘did not believe in it’ and it ‘went against his Charter rights,’” the court decision said.

Rubin told supervisors he also disagreed with the policy, according to the court record.

“He indicated he did not believe the Policy’s terms were required so as to ‘achieve anything with respect to COVID,’” the court document said. It added that Rubin disagreed that he should disclose his private health information or status.

He was given a written warning and put on unpaid leave on Nov. 23, 2021. A further two weeks of unpaid leave was imposed on Dec. 9.

The company gave Rubin a five-day disciplinary suspension on Dec. 28, 2021.

Unifor, the union representing the two men, suggested that same day they both be put on unpaid leave indefinitely rather than being firing, according to the court record.

In an email between the refinery and the union dated Jan. 22, 2022, CCRL said it had an obligation under the public health orders.

“Our approach and response to non-compliance has been clear and consistent,” said the email, which was included in the court decision.

“It is our sincere hope that termination will not be [a] necessary step, that the non-compliant employees will avail themselves of the opportunity to comply with the policy by exercising either the option of getting fully vaccinated or by satisfying the requirement for rapid testing as outlined under the policy,” CCLR wrote.

Rubin was fired on Jan. 24, 2022, and Shuparski was fired the following day after a final meeting with the company during which they both indicated they would not comply with the policy, Danyliuk noted.

The COVID regulations were removed weeks later, the justice wrote in his decision. He also noted the CCRL policy was removed on March 21, 2022.