Treasury Board’s vaccine mandate not ‘disguised discipline’: labour relations board

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The federal labour relations board says Treasury Board’s decision to suspend without pay those public servants who refused to be vaccinated does not amount to disguised discipline.

As part of two grievances launched by suspended public servants, the board was asked to decide whether the government’s mandatory vaccination policy was introduced to protect the health and safety of employees or as a means of disguised discipline aimed at punishing those who refused to abide by it.

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That question was crucial because the federal labour relations board has the legal authority to decide such grievances only if they involve disguised discipline.

In a recent ruling, the board found the government’s policy was not intended to punish unvaccinated civil servants or “correct” their behaviour.

It represents the board’s first decision about its jurisdiction over a raft of grievances that contend the mandatory vaccination policy was unfair.

“Although imposing leave without pay for failing to comply with the policy had an adverse effect on them (the grievors), I find that they did not demonstrate that the effect of the employer’s decision to place them on leave without pay — and to keep them on leave until the policy’s application was suspended — was disproportionate to the employer’s cited administrative reason,” said adjudicator Amélie Lavictoire.

She concluded the policy was adopted to address the health and safety of public servants based on the best scientific evidence available at the time.

Lavictoire found that the adverse career and financial effects suffered by public servants who refused to be vaccinated resulted from their own decision-making.

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“They knew and understood the consequences of failing to comply with the policy,” she said. “Although the choice of whether to comply with the policy was difficult and had consequences, they made informed choices, on principle.”

Lavictoire dismissed the grievances for a lack of legal jurisdiction.

The federal government introduced its vaccine policy on Oct. 6, 2021. It required 260,000 public servants in the core public administration, including members of the RCMP, to be fully vaccinated against COVID-19 or to go on unpaid leave.

The policy applied whether employees were working in a government office or from home.

Public servants who refused to comply were placed on leave without pay until they were vaccinated or until the policy was suspended.

The case before the labour relations board involved two civil servants, Slim Rehibi and Karine Lavoie, both of whom were placed on unpaid leave in November 2021 because they refused to comply with the vaccination policy. They remained on leave without pay until the policy was suspended in June 2022.

Rehibi worked onsite with Service Canada where he helped process Old Age Security benefits. Lavoie, a translator, had worked from home since 2015 under a previously negotiated telework agreement with Public Services and Procurement Canada.

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Rehibi told the labour board that he weighed the risks and benefits of taking what he considered to be an experimental vaccine versus the potential risks and complications of COVID-19. Rehibi said his stand against vaccination was a matter of principle, and that the more insistent the government became about it, the more he resisted.

Lavoie said she had previously experienced adverse effects from a tetanus vaccine and did not want to take a COVID-19 vaccine that required two doses. She called the government’s mandatory vaccine policy an intimidation tactic.

Like dozens of other suspended public servants, Rehibi and Lavoie filed grievances about their forced, seven-month unpaid leaves.

At the labour board, they sought to call as witnesses a number of people who had been harmed by COVID-19 vaccines, but the adjudicator deemed such evidence irrelevant to the question of whether the vaccine policy was disguised discipline.

As part of their defence, the grievors also contested the existence of a true COVID-19 health emergency in Canada, and the reliability of scientific data regarding the safety of mRNA-based vaccines.

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Government lawyers argued that, as an employer, Treasury Board was required by the Canada Labour Code to ensure the health and safety of public servants. When a COVID-19 vaccine became available, they said, it offered the best means of protecting employees.

The grievors argued the government should have waited for scientific certainty about the dangers and benefits of the new vaccines.

Lavictoire accepted the government’s contention that it could not afford to wait for scientific certainty before taking action.

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