Wed. Aug 10th, 2022

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Unemployed for Christmas are the future thousands of City of Toronto workers who could face if they remain unvaccinated for much longer.

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A few weeks ago, I wrote about the shortage of workers that unvaccinated workers would create. The wheels are now in motion.

This week, the city of Toronto has revised its vaccine policy, which requires all remaining unvaccinated city workers to get the finishing touches by November 1st. If they do not, the employees will be suspended without pay for six weeks. Those who are not vaccinated during the suspension period will be exposed less than two weeks before Christmas.

According to my math, this will affect over 3,200 city workers who from October 5 revealed that they were either partially vaccinated or non-vaccinated. Presumably, those who did not disclose their vaccination status will also be suspended, which could increase the number to over 4,700.

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Basically, a group of employees the size of a small town is having consequences unlike anything we have ever seen.

I see this playing out in several ways.

The first, most likely outcome is that the city will offer unvaccinated employees severance packages in December. While some attorneys call for employees to be fired for any reason if they are not vaccinated, it does not appear that that advice takes business realities into account.

The fact is that the legal costs and risks associated with defending a “cause” position are far too high, and the city of Toronto is unlikely to choose that path. Termination of long-term employees for cause makes an employer seem insensitive and numb, a major moral trait for those who remain employed.

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Another major consideration is the union pressure the city will face when thousands of employees are suspended. For example, CUPE 416 filed a political complaint the day after the city revised its mandate.

To avoid weeks of arbitration and the consequent litigation costs, I predict the city will terminate employees as if they were fired for no reason in December.

The second, less likely but possible outcome is that the city responds to union pressure and further revises its vaccine policy to give employees more time (perhaps until spring) to be vaccinated while remaining employed. Trade unions will file political complaints to slow down the city. The city has already given employees several months notice of its vaccination mandate, but more time to adhere to a policy is always preferred by the justice system.

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The city carefully drew up a long schedule and education-focused plan that gave employees ample time to be vaccinated with more options for even the most resistant employee to avoid consequences. If the city can not come to terms with the unions at the exit of unvaccinated employees, the city can extend the runway to ensure that employees received every opportunity to avoid dismissal.

The last and most unlikely possibility is that the city will terminate unvaccinated employees for any reason. In this scenario, employees receive no severance pay at all, regardless of their many years of service. The idea here is that by failing to get the vaccine effectively, the employees have put themselves on the bench. They have opted out of the working community without guilt in the city and have themselves violated their own employment contracts, leaving them entitled to no pay.

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Another version of this option is that the city claims that the employment contracts of these employees are “frustrated” and only pay statutory minimum payments upon termination.

Whichever way the city goes, we know for sure that Toronto’s future does not include ongoing employment of the unvaccinated. A sea of ​​changes in the world of employment is upon us. Are you ready for it?

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To this week’s questions:

Sp. I have been a longtime employee of my employer who is in manufacturing. I have not had problems with others or discipline. My employer says I have to show proof of vaccination and I will not do this. I work from home. Do I get anything if I get fired? Can they actually fire me?

A. Employers who impose vaccination mandates make, by and large, a safe workplace for employees. Employers must ensure safe working environments for their staff. Unless you have a legally qualified exemption from the mandate (religious or medical), your employer may decide that it cannot continue to employ you and also provide a safe working environment for all its employees. There are many reasons why you may not want to get the vaccine, and if you are laid off, it is worth talking to your employer and a lawyer to find out what a fair exit package would be.

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Sp. I have been fired after 18 years and just told by my employer that it is due to the dismissal of COVID-19. I have no letter of resignation. I have not received anything, but I’m not sure if I’m entitled to anything because I was fired under COVID?

A. You are entitled to compensation as a result of the termination of your employment. COVID does not change that. If you have worked for 18 years, you may be entitled to a significant amount of wrongful dismissal from your employer. My advice is to ask for a resignation package and get legal advice to make sure it is in line with what a court would award you.

Do you have a problem in the workplace? Maybe I can help! Send me an email at sunira@worklylaw.com and your question may appear in a future column.

The content of this article is for general information only and is not legal advice.

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