Throughout Canada, many employers are choosing to implement mandatory vaccination policies. For those that are federally regulated, employers are bound by the directives of the Federal Government to ensure that such policies are implemented by October 30, 2021. If you fail to disclose your vaccination status and/or you are not fully vaccinated, you will be placed on an administrative leave without pay (see here: Prime Minister Trudeau’s statement). Some employers are taking this mandate a step further by advising their employees that failure to abide by the mandatory vaccination policy will justify a dismissal for cause.
What is Termination for “Cause”?
In short, a termination for cause suggests that the alleged misconduct is so severe that the employment relationship has become irreparable. Examples of misconduct that could lead to such a dismissal are: dishonesty, insolence, culpable absenteeism, sexual harassment, a conflict of interest, breach of your fiduciary duties or criminal conduct (see more: Termination with Cause Ontario).
If an employer is to allege cause, they must show that the employee’s alleged misconduct was both:
- Serious – demonstrable harm has been done to the employer’s operation; and
- Wilful – the misconduct was intentional or deliberate
Depending on the circumstances, if an employer fails to consider the employee’s history of employment (such as a lack of disciplinary history), and fails to enact progressive discipline, justifying a for cause dismissal will prove difficult.
Is a failure to receive the Covid-19 vaccine valid Cause for dismissal?
For the time being…no.
Presently, no Judge in Canada has determined that the failure to be either partially or fully vaccinated against Covid-19 is valid justification to be terminated for cause.
With that being said, there is an important caveat to consider. If you are an employee with a history of misconduct and with progressive discipline taken against you, a blanket refusal to abide by a mandatory vaccination policy or alternative measures may tilt the scale in favour of the employer.
Do you have to disclose your vaccination status?
The short answer is…maybe (see more: Mandatory Vaccination and Employment).
Some employers, especially those federally regulated, will be mandated by the Federal Government to collect this information.
If you choose not to disclose your vaccination status, you may be subject to alternative measures to ensure safety within the workplace.
It is important to review the policy to ensure that the information you provided remains private and is used appropriately. Understanding how this information will be used and where, if at all, it will be stored will be relevant questions for you to ask your employer.
Is a failure to disclose your vaccination status valid Cause for dismissal?
Similarly, for the time being…no.
Again, it is worth noting, if your employment has been riddled with a history of misconduct, your failure to disclose your vaccination status can be used as an additional act of insubordination in your employment file to justify a termination for cause.
What if you are suspended without pay indefinitely?
It is important to note that unless you have expressly waived this right in your employment contract, you are entitled to be paid during a suspension if you are available and willing to work.
The Supreme Court determined that an administrative suspension can only be carried out when it is:
- Necessary to protect the legitimate business interests;
- Is for a relatively short time period for a fixed term;
- Your employer is acting in good faith; and
- Paid (other than in exceptional circumstances).
As an alternative to placing you on an administrative suspension, your employer may choose to instead place you on an unpaid leave, relying on the Infectious Disease Emergency Leave (IDEL) legislation within Ontario, which has been extended to January 1, 2022. While your employer will suggest that doing so is lawful, several decisions in the Ontario Superior Court of Justice have ruled otherwise – that an employee still has a right to deem themselves constructively dismissed. For more information, please refer to: IDEL and Constructive Dismissal.
Therefore, depending on your circumstances, a suspension without pay or an unpaid leave, such as a layoff, can be deemed a constructive dismissal, triggering your termination entitlements. For more information, go to: Suspensions in the Workplace – Paid or Unpaid?
So, what are your options?
If you are:
- Placed on an unpaid suspension;
- Placed on a paid suspension;
- Terminated for cause for failing to disclose your vaccination status; or
- Terminated for cause for failing to become vaccinated against Covid-19
We highly recommend that you remain measured and speak with one of our employment lawyers at Monkhouse Law to help you navigate the situation.