The B.C. Court of Appeal has set aside the decision of a labour administrator who found in favour of Purolator employees fired or suspended for not getting the COVID-19 vaccine.
It constitutes a reversal of a lower court judgment that had ruled that Labour Arbitrator Nicholas Glass was reasonable in awarding hundreds of employees lost wages and benefits over the vaccine mandate.
The employees, represented by Teamsters Local Union No. 31, had filed hundreds of grievances and argued the vaccine mandate wasn’t reasonable on the part of shipping giant Purolator.
In ruling on the grievances, Glass had found that the mandate was reasonable up until June 30, 2022, when he found that scientific evidence had shifted to show that vaccination alone wouldn’t stop COVID-19 from spreading.
But the province’s top court has now found that Glass was holding the shipping giant to a standard of “correctness,” rather than one of “reasonableness,” which a three-judge panel said was a fatal flaw that undermined the award.
Justice David Harris wrote that Glass undertook his own analysis of medical evidence and studies, and then relied on those findings to determine whether the vaccine mandate was reasonable.
“In my view, it is not reasonable to test an employer’s response to studies indicating a potential problem [and] subject the studies to such a searching level of scrutiny in order to find an employer’s response unreasonable,” Harris wrote.
Glass had ordered Purolator to compensate employees for lost wages between July 1, 2022, and their first day of work after May 1, 2023.
Now, a different arbitrator will look at the grievances filed by the union.
Purolator instituted a “safer workplaces policy” that mandated COVID-19 vaccinations for its employees on Sept. 15, 2021, amid the rapid spread of the deadly virus.
In January 2022, unvaccinated Purolator employees were either placed on an unpaid leave of absence or had their contracts suspended — prompting the Teamsters union to file hundreds of grievances, arguing the vaccination mandate wasn’t reasonable.
Nearly two years later, in December 2023, Glass had found in the employees’ favour and ordered Purolator to compensate them for lost wages and benefits.
Glass had found that two doses of vaccine alone was ineffective against infection by the rapidly-spreading Omicron variant by the end of June 2022.
The Court of Appeal notes Glass’s finding “was rooted in the arbitrator’s own assessment of the state of scientific research, as well as his interpretation of the consensus view of researchers at the time.”
In its ruling, the court says that there was an “internal incoherence or failure of rationality in the arbitrator’s reasoning that undermines confidence” in the award, and Purolator was being held to a higher standard than in other cases.
The union had argued that the arbitrator was entitled to reach factual conclusions in ruling on a unilateral policy from an employer — in this case, specifically about the effectiveness of vaccination in preventing virus transmission.
The top court said that argument may be appropriate in other circumstances — but not in this one, where the COVID-19 virus was constantly mutating and leading to widespread uncertainty.
“In that context, the relevant question is what steps are reasonable, not what steps can be objectively demonstrated to be correct,” Harris wrote in the decision.
CBC News has contacted Teamsters Local Union No. 31 and Purolator for comment on this story.
