Brandon Harder
Regina Leader-Post
A Saskatchewan court has ruled that Consumers’ Co-operative Refineries Limited (CCRL) did not wrongfully dismiss two workers who refused to comply with a COVID-19 vaccination and testing policy.
The March 5 decision by Court of King’s Bench Justice Richard Danyliuk overturns a previous arbitrator ruling after the union that represents the workers successfully grieved their termination.
Danyliuk’s decision lays out that, during the time period at issue, the “world was in the grip of a pandemic the likes of which had not been seen for a century.”
The CCRL had implemented a vaccination and testing policy on Oct. 15, 2021, which the judge’s decision describes as having two options. Employees could either provide proof of vaccination or take a COVID-19 test twice weekly and provide proof of a negative test.
“Out of some 620 union members working at CCRL at the time, only two would not comply with the Policy,” states the publicly available court decision.
“Two workers at CCRL, Dallas Shuparski and Ward Rubin, were given numerous chances to comply with this policy. They did not.”
The judge’s decision says the men were given opportunities to comply and received warnings of consequences “escalating or progressive in nature.”
While “progressive discipline” was used, according to the judge, ultimately they were fired.
CCRL brought an application for judicial review challenging the arbitrator’s decision, which reinstated the men.
Danyliuk’s decision states he analyzed the arbitrator’s reasoning process and for a variety of reasons found the decision to be unreasonable.
The judge wrote the CCRL policy was “flexible” compared to the policies of other employers. He wrote that neither of the men “had any good reason to refuse to comply” with the policy, which the union admitted was reasonable.
Despite this, the judge wrote, the arbitrator “put the Policy itself on trial,” which was an error.
Danyliuk agreed with CCRL’s argument that the arbitrator failed to follow legal precedent.
“To reinstate two defiant, unreasonable workers in light of an uncontested Policy and in light of multiple opportunities to maintain their employment is not a reasonable answer to this situation,” the judge wrote.
Generally, findings such as the ones Danyliuk made would result in the case being sent back to the arbitrator for reconsideration, says the decision.
However, the decision also explains that the law allows for a remedy such as the one sought by CCRL “where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose.”
Danyliuk decided this was such a case.
“Employers cannot, through written policy or otherwise, direct employees to do absolutely anything the employer wishes. That is not what happened here,” he wrote.
“Here, the course of action taken by Messrs. Rubin and Shuparski was unreasonable. It was a course destined to bring them to the point of termination.”
The judge quashed the arbitrator’s decision, dismissed the grievances and awarded legal costs to CCRL.
bharder@postmedia.com
