Unreasonable for Toronto to dismiss firefighters over vaccine status, arbitrator says
In a victory for 13 firefighters who lost their jobs over vaccine status, a labour arbitrator ruled that Toronto’s enforcement of its vaccination policy was not reasonable, setting a potential precedent for other fired workers
In a decision that could set a precedent for other disputes over workplace vaccine mandates, a labour arbitrator has handed a victory to more than a dozen firefighters who were fired by the city of Toronto early this year after failing to get the COVID-19 vaccine or disclose their vaccination status.
The arbitrator ruled that Toronto’s mandatory vaccination policy for firefighters was and still is reasonable and said it is supported by expert evidence that demonstrated the safety and efficacy of vaccines the city required its employees to accept.
However, in a decision on Friday, arbitrator Derek Rogers concluded that the way the city enforced that policy was not reasonable as it essentially meant dismissal for cause was the only and inevitable outcome of refusing the vaccine.
Rogers said the city could have taken other steps short of disciplining and firing the workers and still achieved the goals of protecting other employees and the public.
Howard Goldblatt is a lawyer who represented the Toronto Professional Fire Fighters’ Association (TPFFA), the union for the dismissed firefighters, in the arbitration. He said this is the first ruling he’s aware of to deal with the issue of workers who were not just sent home or put on leave without pay but dismissed for their decision not to get vaccinated or not to disclose their vaccination status.
“I think it is a significant step. It’s certainly precedent setting,” Goldblatt said in an interview with the Star on Saturday. He said the arbitrator’s conclusion that dismissal as the only outcome was unreasonable could have “very broad implications” for other cases across the province and even nationally.
The city announced its mandatory vaccine policy last summer, conducted education sessions and extended various deadlines for workers to get two vaccine doses. By early January, it fired 461 employees across multiple divisions for not complying with the policy; the arbitration decision said 13 members of the TPFFA were dismissed with cause on Jan. 3.
“The removal of non-compliant fire fighters without disciplinary suspensions … would be less intrusive on the employee — near term and long term — than fixing his or her record with a significant discipline,” Rogers wrote in the decision.
Employees put on indefinite unpaid leave would still face financial difficulties, he said, but that would ultimately have less of an impact than having a suspension on their record and being fired.
Rogers ordered the city and the TPFFA to revisit the issue of what repercussions the affected individuals should face.
Goldblatt said when it comes to the individuals involved in this particular case, “we now have a number of firefighters who are, at a minimum, reinstated.”
He said there are still many questions about what exactly this means for them regarding their employment status, seniority, benefit coverage, what type of leave of absence they might be subject to and under what circumstances they might return to work.
Goldblatt also represents the union for outside city workers, which includes paramedics, sanitation and parks employees, in a separate arbitration. Arbitration awards are not binding on other arbitrators, but they can be persuasive and Goldblatt said he expects the decision in the firefighters’ case to carry significant weight.
“The primary thing is that we know for certain that a disciplinary response of suspension and discharge is not reasonable in terms of a vaccine policy,” he said.
Spokesperson Brad Ross said the city is still reviewing the decision, but is “pleased that the City’s policy was upheld as a reasonable exercise of its management rights, given the expert evidence presented at arbitration and the City’s concerns for the health and safety of its employees.”
Ross noted that while the arbitrator found the enforcement of the city’s policy was unreasonable, the decision concluded the city was justified in requiring that a firefighter be fully vaccinated in order to report for work.
“The arbitrator has referred the matter of discipline back to the City and the Toronto Professional Fire Fighters’ Association to determine next steps, reiterating that the mandatory nature of the policy was, and continues to be, reasonable,” Ross said.
Kevin McCarthy, president of the TPFFA, declined to comment on the details of the 100-page arbitration decision on Saturday, citing the need for time to review the award.
A wave of private-sector employers, including Canada’s Big Five banks and large accounting firms, began dropping vaccine mandates in the spring. The province dropped mandates for schools, hospitals and long-term care homes in March and the federal government abandoned such policies for public servants in June.
But the city of Toronto has steadfastly maintained its own policy, citing vaccination as the best protection against COVID-19.
“The City will continue to monitor and assess its COVID-19 vaccination policy having regard for the City’s workplace and public health environments, but at this time, there are no plans to end the policy,” a representative for the city told the Star last week.
With files from David Rider
Christine Dobby is a Toronto-based business reporter for the Star. Follow her on Twitter: @christinedobby