When resolving COVID-19 disputes such as vax or not-to- vax, Vancouver labour and employment lawyer Dan Balkaran’s main advice is check emotions at the door and move forward from a legal position.
Once positions are clarified, it becomes easier to determine what matters. For the employer, it may be finding a way to hold onto a valued and skilled employee or for an employee, finding a way to stay in a good job and not sour relations with an employer, said Balkaran, an associate with Samfiru Tumarkin LLP, a B.C., Alberta and Ontario law firm that has been outspoken on Canadian labour issues surrounding COVID.
Moving on emotion alone can lead to costly pitfalls such as firing employees who won’t vaccinate. As the law firm points out on its website, unless affected by a government mandate in place, private sector employers cannot force employees to vaccinate and if they terminate for not vaccinating, the employer may set the company up for costly legal challenges and repercussions. Terminating for cause eliminates any notice, severance, and the ability to collect unemployment insurances in cases but it is also one of the most difficult positions to uphold as it is usually reserved for the most grievous work offenses.
“Employers are in a tough position, they have to provide a safe working environment,” Balkaran. But at the same time, employees have rights as well and even laying off employees can also come with some costly financial blow-back in Canada. “Employers could be facing hundreds of thousand – if not millions – in severance liability,” he said as laid-off employees are entitled to benefits.
In Ontario, British Columbia and Alberta, respective Employment Standards Acts or Codes determines the minimum severance for employee (usually eight weeks) but it is common law that sets the standard for what a laid-off employee should actually receive. Under common law, the employee’s age, years of service with the company, position, and the terms of an employment contract can add to the dollars owed and severance lawyers such as Balkaran litigate toward that financial end.
Recently Samfiru Tumarkin LLP took a construction employer to B.C. provincial court in a severance suit created through a COVID lay-off. In the case of Snider v. Reotech Construction Ltd., a 40-year-old construction labourer, who had worked for the company for two years, was laid off because of COVID and then told that he would not be called back. The labourer had signed a construction manual that limited severance at eight weeks. However, when the case came to provincial court, the judge did not recognize the manual as a binding document, ruled he was entitled to four months pay, and he was also entitled to notice, which he did not receive, and added another two weeks to the award.
Balkaran said that severance pay-outs to long-term employees can be even heftier, especially if there is no individual contract in place with a limiting clause on the amount of paid severance. The figure can run over six digits, he said.
In another case – although an arbitrated one – featured on the law firm’s blog site shows the pitfalls of acting without legal advice. An employee, while on a work trip to Ladysmith, ate some tainted chicken wings and developed diarrhea causing him to call his boss and book off sick. The boss ordered him to stay in his room, call 811, and arrange a COVID test in Nanaimo. The employee left his room, lied about a COVID test, and instead did an on-line test which he claimed ruled out COVID. A company investigation of the incident eventually led to his termination for subordination and failing to follow boss’s orders. The arbitrator ordered the employee’s reinstatement, with the company paying out lost wages less a five-day suspension for lying. The arbitrator said the company had no clear COVID policy in place to hold the employees to, so it was impossible to determine the employee violated any policy. And, secondly, the symptoms were not indicative of COVID.
Balkaran said that hiring a lawyer to determine a position is often required as COVID has made labour laws more complex. “Things that we thought were not legal a year ago, may be legal now,” he said. “For an employee, there is a lot happening with the vaccine and imposing the vaccine, so talking to a lawyer is well worth the money.”
Samfiru Tumarkin handles only non-union cases. Union members are bound by a collective agreement and those agreements provide certain rights and obligations with an employer. When a union member feels that those rights are being infringed, the person can grieve to the union which can take unresolved issues to labour relations boards for resolution.
While most unions in Canada are urging members to get vaccinated, the RCMP’s union has announced that it will support individual members who do not want to vaccinate. Toronto’s largest union of 5,000 outside workers, the Canadian Union of Public Employees (CUPE) Local 416 has filed a city grievance saying the city’s mandatory vaccination policy is “is unreasonable and violates provisions of the collective agreement.”
The Canadian Labour Congress has come out in support of vaccinations but maintained that public health organizations – and not employers or unions – should mandate vaccinations, and these should not violate collective agreements or human rights codes. Other unions have voiced concerns over members being placed on unpaid leave.
In the mandatory vaccine debate, the over-riding issue is whom the mandate (a word Balkaran doesn’t favour) impacts. Mandates are issued by governments over sector employees or sector affiliates. They can be likened to public health orders (which can have a broader public scope). Mandates are written and made public through postings as are public health orders on government web sites.
“There is rhetoric and there is law,” Balkaran said, adding that while politicians may announce different measures, but these measures need to go through a government process to emerge as edicts that must be followed. Such written orders set out who is affected and the requirements employers and employees when dealing COVID issues in the workplace.
Balkaran said Charter of Rights and Freedom challenges against governments are emerging as they question the right of a government over the individual to decide on vaccination. But these could take years to move through the court, he points out and are of little use to the individual who is without a job or able to collect unemployment insurance.
“COVID moves fast but courts move slowly,” he said.
The reality of COVID is that both the employer and the employee is best served by knowing their legal position when a dispute arises and then deciding what is really important, Balkaran said. “If you are a 57-year-old employee earning $85,000 a year and trying to make it to retirement, will you be able to find another job?” Balkaran said, adding that employers do tend to favor younger employees. At the same time, if an industry is facing skills shortages and the employer may not find another person with those skill sets. There may be other solutions such as using rapid COVID testing, finding work outside a job site or working remotely.