POSTED WEDNESDAY, MARCH 23, 2022
The Union filed a grievance over B.C. Hydro’s decision to implement a Policy requiring that bargaining unit employees be vaccinated by November 22, 2021 or be held out of service. The Policy also provided that “Those employees who remain unvaccinated may be subject to discipline up to and including termination of their employment”.
Given the important issues raised by this Policy and Grievance, and the fact that a number of the Union’s members are being held out of service under the Policy, the Union pursued this grievance on an expedited basis. The arbitration hearing commenced in February and final arguments were completed in early March.
The Union argued that the Employer’s Policy, as a unilateral management action, was unreasonable because it unjustifiably infringed on employees’ medical privacy and bodily integrity. The Union submitted that an employee’s right to medical privacy is among the most significant rights in Canadian society, and the Policy was a significant and unprecedented intrusion into employees’ ability to choose whether, when, and which vaccinations to obtain, under the threat of being held out of service and possibly terminated. The Union argued that the measure of mandatory vaccination was not needed in this workplace, and that there were less intrusive health and safety measures available to the Employer to address COVID-19. The Union also argued in the alternative, at the very least, the disciplinary aspect of the Policy rendered the Policy more coercive and should be struck down.
The Arbitrator has now released a decision on the Union’s grievance. While the vaccination requirement was upheld, the Arbitrator found the disciplinary aspect of the Policy is unreasonable. The Arbitrator awarded the sentence in the Policy on discipline be struck from the Policy.
The Arbitration Award is a significant win for IBEW Local 258 members. The Arbitrator’s Award means that for IBEW members employed by B.C. Hydro who have not complied with the Policy and are being held out of service under the Policy, they cannot be disciplined or face a disciplinary termination at this time, simply for deciding not to get vaccinated.
The Arbitration Award grapples with the unique and unprecedented health and safety situation posed by COVID-19. The Arbitrator recognized that the vaccination requirement under the Policy is a significant intrusion on employees’ bodily integrity and privacy. On the other hand, the Arbitrator also acknowledged that B.C. Hydro is required to maintain a safe and healthy workforce so that it can provide power to the residents and businesses of the province. Further, the Arbitrator held that B.C. Hydro must protect the interests of other employees to keep them safe in the workplace, as well as contractors, customers, and other persons who come into contact with B.C. Hydro employees.
In the balancing of these competing interests, in the unique context of the COVID-19 pandemic, the Arbitrator decided that the interests that led to the Policy outweigh the significant intrusion on the interests of employees being held out of service under the Policy.
However, the Arbitrator held that the disciplinary aspect of the Policy would not enhance the health and safety goals of the Employer. The Arbitrator concluded that the sentence in the Policy referring to discipline for continuing to be unvaccinated is unreasonable at present, and should be struck from the Policy.
The Arbitrator also contemplates in the Award that there is a possibility that if the pandemic subsides, the Policy may be amended in a way that would allow these employees to return to productive work. The Union will be in contact with the B.C. Hydro in the coming days and weeks to discuss the remaining Policy, possible changes to the Policy given the current COVID-19 situation and changing public health orders, and the possibility of having the members currently being held out of service under the Policy returned to work at some point in time.