London hospital worker fired for refusing COVID-19 shot must get job back, arbitrator rules | CBC News

A London woman fired nearly three years ago by London Health Sciences Centre (LHSC) over its staff COVID-19 vaccination policy has had her termination reversed by an Ontario grievance arbitrator.

In his ruling, dated May 30, arbitrator Mark Wright ordered Jill Thompson be reinstated at the hospital, where she had worked for 18 years before her Oct. 22, 2021 dismissal, including as a counsellor in the child and adolescent mental health care program at Children’s Hospital.

“I have found that (LHSC’s) discharge of (Thompson) lacked just cause. I have ordered that (Thompson) be reinstated and that a 30-day disciplinary suspension be substituted for the discharge,” Wright states in his decision.

The grievance, filed on Thompson’s behalf by her union, did not challenge the reasonableness of the policy, but argued the dismissal lacked just cause contrary to the collective agreement between LHSC and Unifor Local 27.

Reached through social media, Thompson declined to comment to CBC News. In a statement, LHSC said it respected the arbitrator’s ruling and will work with Unifor on next steps.

A request for comment from Unifor Local 27 was not returned by publishing time. The lawyer who represented the union during arbitration told CBC News they were not in a position to provide a statement on its behalf.

LHSC’s COVID-19 vaccination policy, unveiled Aug. 31, 2021, ordered staff to receive a first dose no later than Sept. 8, a second by Oct. 8, and be fully vaccinated by Oct. 22, an agreed statement of facts in Wright’s decision says.

It followed a provincial directive that hospitals implement vaccine policies for employees by Sept. 7, 2021. Staff would have to provide proof of full vaccination, a medical reason for not being vaccinated, or complete an educational session.

The Delta variant was circulating at the time, raising concerns of a winter COVID-19 surge — a surge which came as a result of the Omicron variant.

Thompson expressed anxiety around the mandate in an email to LHSC on Oct. 1, the agreed statement of facts says. It notes she hadn’t filed proof of vaccination, or raised medical or human rights grounds for an exemption, by Oct. 15 when she met with LHSC administration.

During a three-minute meeting, Thompson told the hospital she was aware of the policy and the Oct. 22 deadline, that she was not vaccinated against COVID-19, and that she did not plan to be, the statement of facts says.

Thompson testified at arbitration that she was informed of her termination after telling the hospital of her intent to remain unvaccinated. Under cross-examination, she confirmed she was aware termination was a possibility.

She added she remained unvaccinated, and now had “more information available to her” which reinforced her view to remain so.

The arguments

LHSC argued the firing had just cause as Thompson planned to remain unvaccinated despite the policy, “which the parties have agreed was a reasonable response,” to the pandemic, the decision reads.

“(LHSC) argues that the policy was clear on its face… and submits that the case law establishes that the breach of a reasonable mandatory vaccination policy gives grounds for discipline,” Wright writes.

At least 99 employees were fired by LHSC for not complying with the mandate, and 99 per cent of workers were fully vaccinated by Oct. 22, 2021, the decision document says.

The union submitted that Thompson had nearly 20 years seniority, complied with other COVID-19 protocols, and had a clean record, arguing compensation was appropriate over reinstatement. 

Natalie Arnsby, LHSC’s manager of employee and labour relations, testified those factors would not have been considered, conceding that once Thompson said she wouldn’t get vaccinated, her termination followed automatically.

In his decision, Wright said while LHSC had cause for discipline, the termination was excessive as Thompson was not provided progressive discipline, and should have been placed on a 30-day suspension instead.

Termination deprived Thompson of the chance to reflect on the consequences of her decision while on unpaid leave, he writes, acknowledging Thompson likely knew she could be fired.

Wright gave no damages for lost wages, saying Thompson saw no economic loss for which LHSC could be held responsible.

The policy, which the union conceded was reasonable, is still in effect, Thompson remains unvaccinated, and she gave no sign an initial suspension would have changed her mind, he wrote.