Sep 21, 2021  By John Hyde

Is a refusal to inoculate cause for termination?

Now that employers across the country have made vaccination a condition of employment, a number of Canadians are on the cusp of joblessness, if they have not been terminated already. But are those employees owed the same entitlements as those terminated without cause?

The statutory threshold

Most Canadians would be (justifiability) confused to learn that different thresholds exist when terminating an employee for cause, depending on the source of their entitlement. The most stringent threshold is under provincial statutes, intended to protect employees' most fundamental rights upon termination.  For that reason, employers seeking to deprive employees of their statutory rights to notice and/or severance pay must typically prove that an employee's misconduct was not only sufficiently egregious and not condoned, but that it was 'willful'

Since proving someone's subjective intent is a heavy burden, many employers choose to provide statutory notice/severance pay even where serious misconduct is alleged. It is typically the safest route for an employer to take since, should the employer fails to prove the necessary wilfulness, they could be liable for additional damages for the manner in which they terminated the employee.

That said, never before have we seen mandatory vaccination policies at this scale in the private sector, buttressed by comprehensive government directives and calls to action.  In the circumstances, how should an organization respond to an employee who defiantly refuses to comply with a clearly communicated vaccination policy? If the employee has no legitimate human rights reason for the blanket refusal, the employer has an argument that the employee's actions amount to willful misconduct.

The common law threshold

Many employees have termination entitlements under contract and/or common law which greatly exceed statutory termination pay. Those entitlements are determined with reference to the "common law" threshold for cause, which is less forgiving to employees, but its hallmark is the assessment of context and proportionality. Important factors typically include the employee's employment and disciplinary history, whether there was any progressive discipline, and overall, whether the employment relationship has been irreparably damaged. 

If an employee's position requires interaction with clients and/or other workers, that is a factor in favour of the employer, given its statutory obligation to maintain a safe workplace. Similarly, if an employee's blanket refusal to inoculate is consistent with a history if insolence, evidenced by written warnings, that is also a factor in favour of a termination for cause.

On the other hand, a common law termination for cause may be more difficult to establish where an otherwise high performing employee with no past issues, can safely and productively perform their work from home.

Cause for dismissal has been famously compared by the Canadian courts to "capital punishment", given the harsh financial and reputational consequences to employees. It should only be asserted on the advice of experienced counsel with careful consideration of the facts and surrounding circumstances.

To assert cause, or not to assert cause, that is the question

Asserting cause is as much a business decision as it is a legal one. 

Just because an employee's refusal to get vaccinated may justify a termination for cause at law, there are situations where it may not be prudent to proceed in this manner. 

For example, if a short-term employee is entitled to no more than their statutory minimum termination entitlements, an employer may spend more time and money arguing with an already upset employee about the termination, than it would cost to simply pay the statutory termination pay.

Even with senior employees with more robust common law termination entitlements, a legally justified termination for cause, amid the general anxieties surrounding the pandemic, can impair workplace morale at a time when many organizations have had difficulty retaining and attracting talent.

That does not mean that terminations for cause should be avoided in all situations. When justified, it can be a useful strategic lever.  For example, large employers faced with numerous insolent employees who provide blanket refusals to get vaccinated, may wish to strongly discourage such behaviour by terminating with cause. In addition to the savings on termination costs, recent surges in vaccine uptake following the implementation of passports, suggest that some employees simply respond better to sticks, rather than carrots.

In the final analysis, the decision to assert cause is not one to be made lightly. Employers faced with the task of addressing employees' refusal to inoculate would be wise to discuss their strategy with counsel, to determine the best approach for their organization.

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