Wrongful dismissal claim hinges on reasonableness of policy, accommodation argument
If an employee refuses to get a vaccine despite an employer’s mandatory vaccine policy, is that just cause for dismissal?
That question is being asked across the country – and was recently addressed in a B.C. case where a woman launched a wrongful dismissal lawsuit after losing her job.
“We're at the very beginning of this — an employer is always entitled to implement a policy as long as it's reasonable through an objective standard for reasonableness,” says Melanie Samuels, partner at Singleton Reynolds in Vancouver. “The issue is whether you can terminate for cause. That's a challenge for the employer, whether that is cause.”
Background
Andrea Horvath, 49, was employed as a chartered professional accountant at wetlands conservation organization Ducks Unlimited Canada. She was fired in October 2021 following her refusal to follow its vaccination policy. The policy was introduced on Sept. 14 and required all employees to get a COVID-19 vaccine. If they didn’t, the policy indicated that termination could result.
Horvath made a personal choice not to get vaccinated and communicated her concerns about the policy on Oct. 1, saying she didn’t think the shot was necessary because she worked from home. She also felt that the policy itself wasn’t necessary because there had been no outbreaks within the organization, which was proof to her that its existing safety procedures were working.
Two weeks later, Ducks Unlimited fired her for non-compliance with the policy. Horvath, who had no discipline over 11 years with the organization, filed a claim for wrongful dismissal demanding 13 months’ pay and benefits in lieu of notice.
Recently, Ontario hospital workers were denied an injunction of a policy requiring vaccination by a certain date.
Accommodation argument
Horvath’s claim included the argument that Ducks Unlimited could have accommodated her desire to remain unvaccinated — she worked from home 80 per cent of the time before the pandemic and 100 per cent of the time since the start of the pandemic.
But there is no duty on the part of the employer to accommodate unless there’s a human rights issue such as family status or disability, says Samuels.
“An employer is entitled to say that now that the pandemic is winding down — or maybe at that time we had a window where an employer could require everyone to have to report back to work — she can’t do 100 per cent of her duties at home. I think that accommodation issue’s a bit of a red herring, unless there are human rights reasons to accommodate.”
Ducks Unlimited raised the point that vaccination fell into step with its organizational culture and values, telling the Vancouver Sun that “the belief in science and trust in supporting data is fundamental to our culture.”
This could be a factor in determining if there is just cause, but is not likely to be significant on its own, says Samuels.
“I don’t think it’s going to carry the day without a whole bunch of other foundations for implementing the policy, but it’s certainly one that could be considered,” she says. “I think it would be stronger if the employer was in health care.”
Ultimately, the lawsuit’s chance of success will hinge on the policy itself and whether there is a human rights issue requiring accommodation, says Samuels.
“The court would have to look at what did the employer need to know at the time the final policy was implemented,” she says. “On the flip side, the employer can introduce a policy that applies to everybody as long as it’s applied consistently and there’s a reasonable basis for implementing it — in this case, safety — in the context of who they are as an organization. And I think that they’ll have compelling arguments.”
Refusal to follow vaccination policy not a reason for summary dismissal, but such policies could be constructive dismissal, says another employment lawyer.