Over 100 CUPE 5167 members did not comply with the City of Hamilton’s previous vaccination policy.
The City of Hamilton is not allowed to terminate any employee represented by CUPE 5167 who object to the COVID vaccine. A labour arbitrator ruled that specific language in the CUPE 5167 collective bargaining agreement prohibits employee termination due to vaccine status.
However, the ruling is only considered a small win for those who are anti-mandate: employees are protected from termination, but can still be put on unpaid leave.
Additionally, the arbitrator, Jesse Nynam, “expressed no opinion” at this time as to how long an employee can be placed on leave, saying that a ruling on the length is a matter that would have to be determined in the “factual context” in which it arises.
The ruling was made on November 24, 2022.
The City of Hamilton has 11 collective agreements with various unions and associations, including two with CUPE 5167: one agreement for inside and outside “city employees” and one for workers at Macassa and Wentworth Lodges. The ruling applies exclusively to “city employees.”
As of right now there is no vaccine mandate for current city staff, with Council suspending the policy back in August 2022. Despite that, the City and CUPE both wanted a ruling on the interpretation of their contract should a mandate be reinstated. The arbitrator’s task was to interpret and rule on the meaning of Article 10.3(g) of CUPE’s collective agreement. Article 10.3(g) states:
“It is understood that the Employer cannot force an Employee to be immunized or to take the prophylactic alternative without their consent. It is further understood that where such immunization (or the prophylactic alternative to immunization) is required in order for the Employee to attend work and the Employee refuses the immunization or its substitute, they may be placed on unpaid leave with no loss of seniority. In this event the Employer agrees to take reasonable steps to accommodate workers through alternate work arrangements.”
Approximately 112 CUPE 5167 members did not comply with the vaccination policy, with approximately 21 being part-time. The city has said in the past that a total of 264 city employees (5 per cent of the workforce) were not in compliance with the policy, with those individuals in a number of different unions/associations.
The City was originally going to terminate unvaccinated employees on June 1, 2022 and had them on unpaid leave, but that termination date was then extended to September 30, 2022.
Then, on August 12, 2022, City Council voted to suspend the mandate altogether, cancel termination, and bring back employees on unpaid leave.
The reversal only came after Laura Fontana, the head of human resources at the City of Hamilton, revealed that the financial costs of following through with employee termination would cost taxpayers between $2.8 million to $7.4 million due to severance packages entitled to unionized city employees who would face termination.
There are still fears that the newly elected City Council could bring back a vaccine mandate by once again putting unvaccinated employees on unpaid leave and then seeking to drag that process out as long as possible since it is only the termination portion of their original policy that is the least enforceable.
It should also be noted that the ruling does not protect part-time CUPE 5167 employees from termination.
Additionally, Article 10.3(g) does not apply to those who simply choose not to disclose their vaccination status. In order to be protected from termination, employees would not be able to stay silent about their status, but would have to disclose that they refuse vaccination. In other words, a “medical privacy” argument would be null and void.
Based in Hamilton, he reaches hundreds of thousands of people monthly on Facebook, Instagram, TikTok, and Twitter. He has been published in The Hamilton Spectator, Stoney Creek News, and Bay Observer. He has also been a segment host with Cable 14 Hamilton. In 2017, he received the Chancellor Full Tuition Scholarship from the University of Ottawa (BA, 2022). He has also received the Governor General’s Academic Medal. He formerly worked in a non-partisan role on Parliament Hill in Ottawa.
