SOURCE: JUSTIN DIGGLE, MILLER THOMSON LLP
Bunge Hamilton Canada (“Bunge”) operates a processing facility in Hamilton. Its facility had two sites separated by a roadway; one was owned by Bunge and the other was leased from the Hamilton Oshawa Port Authority (“HOPA”). Under federal Transport Canada directions, HOPA issued a vaccination policy for all tenants operating on HOPA property: employees of such tenants were required to attest that they were fully vaccinated against COVID-19 on or before January 24, 2022 unless they were exempt for medical reasons. If employees did not comply, they would not be allowed on HOPA property.
Under its lease, Bunge was required to follow all HOPA policies and procedures and, as a result, in November 2021 implemented a vaccination policy to comply with HOPA’s requirements. The policy applied to all Bunge employees. If employees did not provide the required attestation and were not subject to an accommodation based on medical reasons or creed, they would be placed on an unpaid leave of absence “pending a final determination on their employment status (up to and including potential termination of employment).” The policy provided safeguards for information submitted under its terms.
The United Food and Commercial Workers Union, Local 175 filed a policy grievance which raised a number of arguments. In addition to arguing that the policy violated employees’ privacy rights, the Union said it was unreasonable to place employees on unpaid leaves of absence, or to discipline or terminate, for a failure to become fully vaccinated. The Union also argued that it was unreasonable for Bunge to apply the policy to employees who worked on the Bunge owned site as opposed to the leased site. In the Union’s view, Bunge had not established that it could not accommodate unvaccinated employees by assigning them exclusively to the site which it owned, and Bunge had not justified a lack of alternative measures such as testing.
Bunge denied the Union’s arguments. In Bunge’s view, it was premature to consider the Union’s objection to unpaid leaves, discipline and termination, as no employee had faced those consequences yet and, moreover, the policy did not require discipline or termination as a consequence for its breach. Bunge also argued that it would not be feasible operationally to separate the two sites and employee groups as they form an integrated operation. Finally, Bunge argued that where a third-party landlord-imposed requirement on its tenant, it is reasonable for the tenant (as employer) to implement a policy which complies with those requirements.
Arbitrator Robert Herman dismissed the grievance. In addition to noting that COVID-19 presents a serious health and safety risk, the Arbitrator found that Bunge’s two sites were operationally integrated and that cohorting unvaccinated employees to the owned site was not reasonable: employees go between the sites for a variety of reasons and such cohorting would create significant operational disruptions. In addition, the Arbitrator found that the attestation requirement was reasonable, and the breach of any employee privacy rights were considerably outweighed by “the enormous public health and safety interests at issue”.
The Arbitrator noted that the policy did not require discipline or termination and, given the circumstances including HOPA’s requirements and the health and safety risks, the potential consequence of an unpaid leave was reasonable. The Arbitrator did note, however, that the Union would be free to file a grievance if an employee was ultimately disciplined or dismissed under the policy.
Finally, the Arbitrator rejected the Union’s position on testing: in the Arbitrator’s view “testing would put the Employer in breach of its lease obligations with HOPA” and “In any event, there is no evidence before me that suggests that a testing alternative would provide sufficient protection for employees and others entering upon either property.”
