A wave of unvaccinated workers have filed wrongful termination lawsuits in protest of their employers’ vaccination mandates, but lawyers say courts are likely to prioritize public safety measures over the hardships of laid-off employees.
Canadian employers began laying off unvaccinated workers in late October after a series of corporate titans, including several of the largest banks, airlines, rail operators and automakers, warned employees over the summer that they had a matter of months to get fully vaccinated or face penalties.
Since then, workplaces across the country have faced pushback from employees and their unions over vaccine mandates they say violate their pre-existing agreements with their employers.
A Windsor hospital in November fired 57 employees on the spot after refusing the vaccine. Earlier this month, the city of Toronto laid off more than 450 employees for failing to comply with its vaccination mandate, imposed last August.
Now, amid a major backlog in the court system, lawyers say it will likely be months before decisions are made on the ongoing litigation between employees and employers.
Howard Levitt, a senior partner at Levitt Sheikh, says he suspects the courts will rule on the side of the employer in most cases.
“When all levels of government, all medical directors of health from coast to coast and all serious members of the medical and scientific community say that the route to safety and out of the pandemic is through vaccines, it is It is extraordinarily unlikely that a court will disagree and require the employer to pay wrongful termination damages if it terminates the employee for refusal,” Levitt said.
“If these workers have to deal with other people, whether they are co-workers, customers, vendors, or members of the public, and the employer has a mandatory vaccination policy, the employees have a very weak case.”
Some referees and judges have already dismissed complaints related to vaccination mandates.
On Wednesday, a labor arbitrator ruled that Maple Leafs Sports and Entertainment was entitled to suspend a Scotiabank Arena employee in November for refusing to disclose his vaccination status. In December, a trial judge denied a request by Amalgamated Transit Union Local 113, which represents TTC employees, to stop the transit commission’s vaccination policy, arguing that the employee exodus could lead to service disruptions. .
In the TTC’s ruling, the court noted that “while contemplated service cuts are unfortunate, the potential for unvaccinated workers to spread COVID-19 to their co-workers or passengers is a risk that the TTC does not accept.” should accept. It is a risk that is inconsistent with its obligation to create a safe workplace for its employees and a safe way to get around the city for its passengers.”
Some employment lawyers say that employees can make a strong case for wrongful termination if employers have not offered reasonable alternatives to termination, such as working remotely.
“At one extreme of wrongful termination claims, you get arguments against science and against vaccines. But on the other hand, you’re getting more comprehensive individual claims for waivers or accommodations, circumstances where, for example, remote work options really are available but the employer isn’t willing to go there,” said Danny Kastner, employment attorney and a partner at Kastner Lam LLP.
It could be months, if not years, before the score of litigation over vaccine mandates is fully resolved. Canadian courts have faced significant delays amid pandemic-related lockdowns and restrictions, with lawyers saying wrongful termination cases are unlikely to get priority.
“Realistically, I can’t imagine any of these cases coming to court before the summer,” said Elisha Jamieson-Davies, an attorney with Hicks Morley LLP. “And even that could be a pretty aggressive timeline.”
Reference-www.thestar.com