Being unvaccinated could frustrate your employment contract

This article was originally published by The Hamilton Spectator. 

The nature of the civil litigation system being what it is, lawsuits don’t result in a final judge’s decision for some time — usually two to three years, sometimes longer.

If you are in a union and grieve a termination, the decision is much quicker. That is why we have heard about arbitration decisions regarding the enforceability of mandatory vaccine policies and resulting terminations.

People who were terminated for being unvaccinated and started a lawsuit are still waiting for court decisions. They are starting to arrive.

Brian had worked as a satellite installer for seven years by the time he was terminated. The company he worked for was a subcontractor and it only had one client. Its continued existence depended entirely on getting work from that client. Brian’s job involved going on site to install satellite dishes in all kinds of settings, including people’s homes. He was paid on a piecework basis.

In September 2021, the client adopted a mandatory vaccination policy. It told Brian’s employer that all of their workers had to have at least two approved vaccination shots in order to carry out the client’s assignments.

Brian’s employer, if it wanted to continue to exist, was forced to adopt its own policy to comply. The employer’s policy indicated that non-compliant installers would be prohibited from performing work for certain customers (it really only had one) and may not receive assignments of any jobs.

Upon receiving the policy, Brian sent a letter to his employer indicating that he would not disclose his vaccination status due to privacy laws. He also indicated that he felt he was being discriminated against as a result of his decision not to be vaccinated. He breached his own alleged privacy rights in the same letter in which he asserted them.

When Brian was given two weeks’ working notice of his termination, he did not change his tune. He reiterated that he would never become vaccinated.

In court, Brian claimed he should have been given a clear warning that he would be terminated if he did not get vaccinated rather than just being told there would be no assignments available.

The problem with that argument is that once he was given his two weeks’ notice he knew what the consequences of continued refusal would be.

A frustration of contract occurs when there is a radical change in the employment obligations arising from unforeseen circumstances and where there had been no prior agreement with respect to the issue.

Three years ago, very few employers had mandatory vaccination policies in their employment contracts. It really was not an issue worthy of the paperwork. The unforeseen circumstance in this case was the client’s mandatory vaccination policy with no room left for Brian’s employer to manoeuvre. The client had not offered up regular testing as an option. It was not Brian’s fault that circumstances had changed and it was not the employer’s. What it did leave was a situation in which Brian’s ability to perform the duties of his position for the foreseeable future had been eliminated. A judge found that circumstance struck at the root of the employment contract and it was in fact frustrated at law. It was analogous to a situation in which a statutory or legal change occurs resulting in an employee suddenly becoming unqualified to perform their duties. One example was a new Ontario licensing requirement for security guards that left many of them unqualified overnight. Brian’s claim for wrongful dismissal damages failed.

It is important to note that the judge in Brian’s case did not find that Brian was guilty of wilful misconduct or some sort of just cause behaviour warranting his dismissal. That was never an issue in the case. What the judge did find was that given the unanticipated change in circumstances that rendered the employer unable to give Brian work for the foreseeable future, his termination was warranted.

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Ed Canning
Ed Canning
P: 905.572.5809