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OLRB dismissed the case of unvaccinated healthcare workers complaining their union wasnβt supportive.
The Ontario Labour Relations Board recently dismissed the complaint of several unvaccinated healthcare personal support workers who were upset with their unionβs position to not aggressively support them in their decision not to receive a COVID-19 vaccine.
βThe applicants have not established a prima facie case of a breach of the [Labour Relations] Act,βΒ says a decisionΒ released Jan. 10.
βFundamentally, the applicants are unhappy about the employerβs COVID-19 vaccination policy and are unhappy that the union has not insulated them from their decision to remain unvaccinated,β OLRB vice-chair Lindsay Lawrence wrote in the decision. βThis does not make out a breach of the duty of fair representation.β
In the fall of 2021, the employer, CarePartners, introduced a COVID-19 vaccination policy that required employees to be fully vaccinated by no later than Nov. 30, 2021. An allowance was subsequently made for employees to continue working into January 2022 if they had received one dose of the vaccine by Nov. 29, 2021, and attested that they would receive a second dose by Jan. 19, 2022.
Following the release of the policy, Service Employees International Union, Local 1, the union representing personal support workers at CarePartners (an intervenor in this case), advised its members that it had sought legal advice on the employerβs policy. The advice they received made it clear that βgiven the current state of the law and the unprecedented challenges of COVID-19, mandatory vaccination policies will most likely be upheld.β
The union told members they could file a grievance, which would be held in abeyance βpending case law,β but it warned that such grievances were unlikely to succeed and that absent a valid exemption, employees who refused to be vaccinated risked discipline or dismissal.
The unhappy employees filed an application against the union on Nov. 24, 2021. At the time the application was filed, the employees anticipated being, but had not yet been, placed on unpaid leave. As a result of the application of the policy, on Nov. 30, 2021, employees Tiffany Bloomfield, Danielle Hurding and Lexi Bezzo were placed on unpaid leave, and the union did file a grievance on their behalf.
The CarePartners policy states that non-compliant employees will be βmanaged accordingly, including but not limited to, being placed on an unpaid leave of absence.β As of the date of the consultation, these employees have remained on unpaid leave.
The employees alleged that the union breached the duty of βfair representationβ as set out under s. 74 of the Labour Relations Act. It says a trade union or council of trade unions βshall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit.β
Under the act, Lawrence wrote, the board cannot dismiss an application for failing to make out a prima facie case βunless it is clear, or plain and obvious, that it has no reasonable chance of success for establishing a violation of the act based on the allegations made.β
At the Jan. 5 consultation, the employees alleged:
- the union had not communicated sufficiently with them and/or had discouraged them from βtaking actionβ
- the union should have taken steps to challenge the policy before Nov. 30, 2021
- the union was not taking enough action with respect to the grievance.
In terms of a remedy, the employees wanted the board to force the union to pursue their concerns more forcefully and quickly. βThe applicants also asserted that the union should have challenged what they allege was unfairness when the employer allowed employees with one dose extra time for compliance.β
Β βThis is not an application about the unionβs conduct in any way being arbitrary, discriminatory or in bad faith.β
One of the applicants read a letter at the consultation that expressed her views about the vaccine and various statistics related to the vaccine. However, Lawrence said in her ruling that these complaints are βnot about the unionβs conduct.β
She cited a recent ruling on a similar issue,Β Tina Di Tommaso v Ontario Secondary School Teachersβ Federation, 2021 CanLII 132009, which stated: βA duty of fair representation application is about a unionβs conduct in the representation of its members and is βnot the forum for debating or complaining about vaccination in general, this vaccine in particular, scientific studies, the governmentβs directions, and/or a particular employerβs policy.ββ
In her own decision, Lawrence ruled βto the extent that the applicants seek to challenge the employerβs policy and/or to have the board order the employer to change that policy or provide compensation, a section 74 complaint is simply not the right forum, and those remedies are not available.β
βThe union made clear to its members the legal advice that it had received and what it had determined to do in response,β Lawrence wrote. βThe applicants clearly disagreed with the unionβs message, and indeed may have found that message discouraging, but it cannot be said that the union did not communicate and/or was unresponsive to member inquiries about the policy.β
One of the applicants said that she sent an email inquiry to the union, to which she did not receive a reply. However, Lawrence wrote: βWhether or not the union responded directly to each and every email, there is no doubt that the union communicated clearly and effectively with members in response to the policy. The union was not required to provide its unvaccinated members with encouragement or a rosy outlook; indeed, it was fair and prudent for the union to provide a clear and frank assessment of the situation based on legal advice received.β
Finally, Lawrence said the board could not conclude that the union breached its fair representation duty in moving the grievance through the procedure set out in the collective agreement. βOn its face, a decision to watch βpending case lawβ (particularly on an emergent issue and at a time when many arbitration cases are known to be proceeding on vaccination policies across the province) is anything but arbitrary, discriminatory and/or in bad faith.β
She also noted that the union immediately filed a grievance on behalf of the employees who βsuffered an adverse employment consequenceβ by being put on unpaid leave. βThere was nothing further that the union could or should have done for them in that regard.β
βIt is entirely unsurprising that the Labour Board reached this decision β the employeesβ complaints related to the imposition of the employerβs policy. The union did what it was required to do.β
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Jason Jagpal
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Furthermore, the union filed a policy grievance when its workers were impacted by being placed on unpaid leave and acted correctly in waiting until then. Based on the legal advice it received, holding the grievance in abeyance βwas the most prudent course of action.β
Jagpal notes that had the union not brought a policy grievance, there is the possibility that the Labour Board would have viewed matters differently. However, the labour board deferred to the unionβs βinformed decisionβ and wonβt βcompel a union to ignore legal advice in determining if and when to file a grievance.β