IN THE MATTER OF AN ARBITRATION  
BETWEEN:  
LIUNA LOCAL 183  
-and-  
(The “Union”)  
NOVA SERVICES GROUP INC. - COMPASS GROUP CANADA LTD  
(The “Employer”)  
GRIEVANCE DATED November 1, 2021 (Vaccination Policy).  
Ian Anderson, Sole Arbitrator  
For the Union:  
Ryan Newell, Counsel  
Andrea Sobko, Counsel  
Andre Da Silva, Business Representative  
For the Employer:  
Marc Rodrigue, Counsel  
Brenda Chang, Counsel  
Dave Seymour, VICE PRESIDENT, LABOUR RELATIONS, COMPASS GROUP  
CANADA LTD.  
Julia Wells, LABOUR RELATIONS ADVISOR, COMPASS GROUP CANADA  
LTD.  
Hearing June 8, 2022.  
Award issued on July 6, 2022.  
.
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1. The issue in this case is whether the Employer should have laid off employees  
working at long term care homes who declined to be vaccinated against COVID-19,  
rather than placing them on temporary unpaid leaves of absence as it did.  
2. This is not a case in which the Union challenges the reasonableness of mandatory  
vaccination policies. Rather, the Union asserts the Employer does not have a  
mandatory vaccination policy of its own, nor did it adopt the policies of the operators  
of the long term care homes who were its clients (the “LTC Clients”). The Union  
expressly states it does not challenge the reasonableness of the LTC Clients’  
policies. The Union argues, however, the Employer simply relied on the result of the  
application of the LTC Clients’ policies. Since the application of those policies  
precluded some employees of the Employer from working at homes operated by the  
LTC Clients, the Union argues the appropriate course of action was to lay off those  
employees, not place them on leaves of absence as the Employer did.  
The Facts  
3. The matter proceeded by way of the following Agreed Statement of Facts (“ASF”).  
1. The Company and the Union are parties to three separate Collective Agreements:  
Compass Group Canada Ltd. (“Provincial Long-Term Care”), Compass Group Canada  
(Beaver) Ltd. (“Beaver”), and Compass Canada Support Services Ltd. – Extendicare  
Cobourg (“Extendicare”) (Tabs 1 to 3).  
2. The Company contracts with Revera and others (hereafter, collectively, the “client”) to  
provide cleaning, maintenance, dietary, and environmental services at various long-term  
care homes across the province of Ontario.  
3. The Provincial Long-Term Care Collective Agreement (Tab 1) is effective July 1, 2018 to  
June 30, 2021. This Collective Agreement governs the terms and conditions of  
approximately 900-1000 Compass employees performing bargaining unit work at more  
than 50 homes across the province. The Union is the exclusive bargaining agent for the  
following bargaining unit:  
all employees of the Employer engaged in cleaning, maintenance and  
dietary work at all locations throughout the Province of Ontario, excluding  
Hearthstone by the Lake in Burlington, Ontario; Southbrook Lodge  
Retirement Home in Brampton, Ontario and Suomi Koti in Toronto,  
Ontario, and save and except supervisory personnel, office and clerical  
staff and students, and those individuals covered by and working pursuant  
to the existing provincial cleaning collective agreement between these  
parties. (Article 1.01)  
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4. The Beaver Collective Agreement (Tab 2) covers the term May 9, 2019 to May 8, 2022.  
This Collective Agreement governs the terms and conditions of approximately 95  
Compass employees performing bargaining unit work at five homes across Ontario. The  
Union is the exclusive bargaining agent for the following bargaining unit:  
all employees of the Employer at all locations throughout the Province of  
Ontario, where the employees of the Employer perform such work on the  
basis of contract(s) with Revera, save and except supervisory personnel,  
office and clerical staff and students. (Article 1.01)  
5. The Extendicare Collective Agreement (Tab 3) covers the term July 1, 2019 to June 30,  
2022. This Collective Agreement governs the terms and conditions of approximately 11  
Compass employees performing bargaining unit work at Extendicare Cobourg. The Union  
is the exclusive bargaining agent for the following bargaining unit:  
employees of the Employer at THE COBOURG EXTENDICARE, 130  
DENSMORE ROAD, COBOURG, ONT., where the employees of the  
Employer perform environmental services, save and except supervisors  
and persons above the ranks of supervisors. (Article 1.01)  
The Grievance  
6. The grievance, filed on November 1, 2021, alleges that the Company violated the  
Collective Agreement by placing unvaccinated employees on “temporary unpaid leaves of  
absence” by application of its clients’ mandatory vaccination policies (Tab 4).  
7. The Union’s position is that the appropriate response in circumstances where employees  
were prohibited from accessing their work sites controlled by a third party was to issue  
lay-offs to the affected employees.  
8. The Company’s position is that it adopted and implemented the same policy as the client.  
That policy resulted in unvaccinated employees being placed on leaves of absence.  
9. The Union further alleges that the Company violated the Employment Insurance  
Regulations by failing to issue a record of employment (“ROE”) to affected employees who  
experienced a disruption in earnings as a result of the application of the client’s mandatory  
vaccine policy.  
10. The Company’s position is that all affected employees have been issued the appropriate  
ROE.  
The Relevant Directives and Policies  
11. On March 19, 2020, the Ontario government amended provisions under the Employment  
Standards Act, 2000 (“ESA”) in response to the COVID-19 pandemic. This amendment  
included changes to s. 50.1 of the ESA regarding infectious disease emergency leave  
during the COVID-19 Period (Tab 5).  
12. On May 29, 2020, the Ontario government enacted O. Reg. 228/20 (the Infectious Disease  
Emergency Leave Regulation). The regulation amended provisions of the ESA relating to  
the infectious disease emergency leave, among other amendments (Tab 6).  
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13. On or around March 24, 2021, the Company sent associates who had not yet provided  
their vaccination status a letter reminding them that Compass strongly encouraged  
vaccination. In addition, the Company stated the following:  
Our clients may not permit unvaccinated associates to work if there is an outbreak  
in the home. This could result in you being removed from the unit and placed on  
an unpaid Leave of Absence for the duration of the outbreak.  
The letter also requested that employees provide a response regarding their COVID-19  
vaccination status by March 31, 2021 (Tab 7).  
14. On June 9, 2021, Revera advised the Company of its COVID-19 immunization policy,  
procedure, and education policy (Tab 8). On June 24, 2021, the Company advised all  
management team members working in long-term care homes about the application of the  
Ontario Minister’s Directive on the long-term care home COVID-19 immunization policy.  
As of July 1, 2021, all Compass managers working in long-term care in Ontario would be  
required to enforce the requirements of their long-term care client’s COVID-19  
immunization policy and the provisions of the Minister’s Directive (Tab 9). Compass set  
out FAQs regarding the Ontario Minister’s Directive on Long-Term Care Home COVID-19  
Immunization Policy, including information on proof of vaccination (Tab 10).  
15. On July 1, 2021, the Minister of Long-Term Care issued a Minister’s Directive: Long-term  
care home COVID-19 immunization policy setting out requirements for the establishment,  
implementation, and reporting of a COVID-19 immunization policy for long-term care  
establishments. The Directive applied to all staff, student placements, and volunteers,  
regardless of the frequency or duration of any period of time they attended the long-term  
care home. All individuals subject to the COVID-19 immunization policy were required to  
provide long-term care homes (i) proof of COVID-19 vaccination of each dose of an  
approved COVID-19 vaccine; (ii) written proof of a medical reason that the individual could  
not be vaccinated against COVID-19, including the effective time period for the medical  
reason; or (iii) proof that the individual completed an educational program approved by the  
long-term care home about the benefits of vaccination and the risks of not being vaccinated  
(Tab 11).  
16. On August 26, 2021, a coalition of seniors’ living operators, including the Company’s  
clients, announced that they were making COVID-19 vaccination mandatory for long-term  
care and retirement home staff and third parties (Tab 12).  
17. On the same day, Revera, one of the Company’s clients, published a question and answer  
page related to its mandatory staff vaccination policy. Effective October 12, 2021, Revera  
would require all staff to be fully vaccinated for COVID-19 and provide proof of vaccination.  
Refusal to adhere to any measures outlined on the page would result in being placed on  
an unpaid leave. Third party agency workers would not be given access to Revera’s sites  
(Tab 13).  
18. On September 2, 2021, the Minister of Long-Term Care issued Minister’s Directive: Long-  
term care home COVID-19 immunization policy mandating that all Ontario long-term care  
homes adopt and implement written COVID-19 immunization policies, which required all  
staff, students, and volunteers in long-term care homes to provide proof of full vaccination,  
written proof of a medical exemption, or proof of completion of an educational session  
regarding the benefits of vaccination (Tab 14).  
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19. On September 7, 2021, the Company’s client SGP Purchasing Partner Network  
(Extendicare) advised the Company that it had updated its vaccination policy by making  
the COVID-19 vaccination mandatory for long-term care and retirement home team  
members across Canada, including contracted service providers. As of October 12, 2021,  
any agency staff or service providers who were not fully vaccinated would no longer be  
able to work in their homes. As of October 12, 2021, Extendicare asserted that it would no  
longer partner with agencies or service providers that did not have a mandatory  
vaccination policy for all their staff (Tab 15).  
20. On September 28, 2021, Revera sent the Company its COVID-19 immunization policy  
flow chart. Under this policy, staff members were required to show that they were fully  
vaccinated by October 12, 2021. Unionized employees who were unvaccinated would be  
placed on an unpaid leave of absence (Tab 16).  
21. On October 1, 2021, the Minister of Long-Term Care issued an updated Minister’s  
Directive: Long-term care home COVID-19 immunization policy which made COVID-19  
vaccinations mandatory for all in-home staff, support workers, students, and volunteers in  
long-term care homes by November 15, 2021. The updated Directive no longer contained  
the educational program option included in the September 2, 2021 Directive, making  
vaccination mandatory for staff in long-term care homes after November 15, 2021 unless  
a medical exemption applied (Tab 17).  
22. On October 12, 2021, Revera published an updated COVID-19 Vaccination Policy  
requiring that all staff be vaccinated. Employees in Revera’s Homes and Residences who  
refused to adhere to the measures outlined in the policy would result in staff being placed  
on an unpaid leave (Tab 18).  
23. On November 4, 2021, the Ministry of Long-Term Care published a memorandum on  
COVID-19 vaccination updates, including the expansion of eligibility for booster doses,  
optimal interval between first and second doses of COVID-19 vaccine, and visitor vaccine  
policies (Tab 19).  
24. Effective January 27, 2022, the Ministry of Long-Term Care published a directive on the  
long-term care home COVID-19 immunization policy. Among other requirements, staff  
were required to show proof of a third dose with certain exemptions (Tab 20).  
25. On February 3, 2022, the Company sent all employees a notice regarding the updated  
COVID-19 vaccination and third doses for long-term care team members. Team members  
who were eligible for their third dose on or after January 1, 2022 and who did not provide  
proof of a third dose by March 14, 2022 to managers at the long-term care home would  
be placed on an unpaid leave of absence, unless a documented medical reason prevented  
vaccination (Tab 21).  
26. As of March 25, 2022, Service Canada’s EI guidance for employers regarding COVID-19  
vaccination stated the following:  
“When the employee doesn’t report to work because they refuse to comply with  
your mandatory COVID-19 vaccination policy, use code E (quit) or code N (leave  
of absence).  
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When you suspend or terminate an employee for not complying with your  
mandatory COVID-19 vaccination policy, use code M (dismissal or suspension).  
If you use these codes, we may contact you to determine:  
o if you had adopted and clearly communicated to all employees a mandatory  
COVID-19 vaccination policy  
o if the employees were informed that failure to comply with the policy would  
result in loss of employment  
o if the application of the policy to the employee was reasonable within the  
workplace context  
o if there were any exemptions for refusing to comply with the policy” (Tab  
22).  
Circumstances giving rise to November 2021 Grievance  
27. On or around September 20, 2021, Compass issued letters to employees who had  
informed the Company that they had chosen not to be vaccinated against COVID-19. The  
letter confirmed that Revera’s policy required that “all Associates of Compass Canada Ltd.  
(“Compass”) working at its sites must be fully vaccinated by October 12, 2021 otherwise  
Revera will not permit access to the site;” that Compass employees had been given “ample  
notice” of this requirement; and that the Company expected all associates to comply with  
this policy. The Company “strongly encouraged” the employees to revisit their position and  
work with managers to establish a timeline to complete their vaccinations (Tab 23).  
28. On or around September 28, 2021, the Company issued letters to employees stating that  
its clients had adopted policies requiring the employees of contractors to provide proof of  
full vaccination by October 12, 2021. Each letter identified the applicable client work site  
and was signed by the local district manager for the Company. For example, a letter issued  
to a Compass employee employed at Ridgeview LTCC reads as follows (Tab 24):  
The purpose of this letter is to confirm Ridgeview LTCC policy with  
respect to approved Health Canada, Covid-19 Vaccinations and its  
impact on associates of Compass Group Canada Ltd.  
The following are the expectations from Ridgeview LTCC. These  
expectations are mandatory and are to be adhered to by October 12,  
2021:  
• All associates must be double vaccinated with a Health Canada  
approved Covid-19 Vaccination.  
• A directive has been issued mandating healthcare facilities have a  
Covid-19 vaccination policy by September 7th, 2021. This mandate  
also requires proof of vaccination by employees, contractors etc.  
Therefore, this requirement requires Compass Group Canada to  
provide the Client with the names of those who have provided proof  
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of vaccination. Those associates who have not provided proof will be  
considered unvaccinated.  
• The Client’s policy expressly advises that an associate not in  
compliance with the expectations of the policy will not be permitted on  
site. Should you not be in compliance by the designated deadline,  
Compass will have no other choice but to place you on a personal  
leave of absence until which time you comply with the policy or until  
another suitable role becomes available, however this cannot be  
guaranteed.  
The applicable Union representatives received copies of this correspondence for the  
Northridge location but not for the other locations covered by the Collective Agreement.  
29. On or around October 1, 2021, the Company issued “Policy Compliance” letters to  
employees who had not provided proof of vaccination. According to Compass’s letters,  
employees were informed of the client site policy regarding vaccinations on August 27,  
2021 and notified that non-compliance would result in a “temporary unpaid leave of  
absence”:  
On August 27, 2021 you were advised about the client policy on  
vaccinations.  
You have advised the Compass Group Canada (“the Company”) that you  
do not intend on getting vaccinated and will therefore not be compliant  
with the policy at your site.  
At the site in which you work, restrictions for site access has been  
communicated and as such you are no longer permitted on site effective  
October 12, 2021; therefore, you will be placed on a temporary unpaid  
leave of absence. It it is our hope that all Associates who do not have an  
approved exemption will comply and receive all required dosages for a  
Health Canada approved Covid-19 vaccine.  
The Company is committed to ensuring that the Health and Welfare of our  
Associates is a priority and that our Clients and Customers are protected  
from the COVID-19 pandemic. To prevent the spread of COVID-19, the  
Company strongly encourages our Associates to get vaccinated as soon  
as possible. If you need assistance in scheduling a vaccine appointment,  
please speak with your Manager.  
The applicable Union representatives received copies of this correspondence for the  
Northridge location but not for the other locations covered by the Collective Agreement  
(Tab 25).  
30. At least one other employee received a “Policy Compliance” letter on or around October  
15, 2021 (written in French), which stated that notice of the mandatory vaccination policy  
was given on September 3, 2021. That employee was given until October 31, 2021 to  
comply with client site requirements (Tab 26).  
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31. On or around October 8, 2021, “Compliance Refusal” letters were issued to bargaining  
unit employees who had not provided proof of vaccination. Compass stated that its basis  
for imposing unpaid leaves was that the employees in question had not satisfied the “Client  
Site Requirements” and were therefore “not permitted to access the site” where they  
worked:  
Client Site Requirements – Compliance Refusal  
On August 27, 2021, you were advised about the client policy on  
vaccinations.  
This letter confirms that you have definitively advised Compass Group  
Canada (“the Company”) that you have chosen not to be vaccinated  
against COVID-19 and will therefore not be compliant with the policy at  
your site.  
Unvaccinated Associates are not permitted to access the site where you  
work. Accordingly, you will no longer be permitted on site effective  
October 12, 2021. You will be placed on a temporary unpaid leave of  
absence to permit you time to comply with the policy. Company  
Associates have been given ample notice of this requirement and we  
expect all Associates to comply.  
If you ultimately choose not to be vaccinated, that is your right. However,  
many Company clients are implementing similar policies and Compass  
may not be able to place you at an alternate location where vaccination is  
not required. Consequently, your employment may be impacted. We  
strongly encourage you to revisit your position and work with your  
manager to establish a timeline for your vaccinations to be completed.  
The applicable Union representatives received copies of this correspondence for the  
Northridge location but not for the other locations covered by the Collective Agreement  
(Tab 27).  
32. A temporary unpaid leave of absence was retroactively imposed on Vesna Petricevic  
effective October 12, 2021 by “Compliance Refusal” letter dated October 22, 2021. The  
Company stated that Ms. Petricevic would be denied access to the site where she worked  
effective October 12, 2021 (Tab 28).  
33. The Company also created letters regarding religious and medical exemption requests  
(Tab 29).  
34. Vesna Petricevic, sought a religious exemption from the client site vaccination policy on  
or around November 5, 2021. By letter dated November 12, 2021 the request was denied  
by the Company on the grounds that a religious exemption “does not qualify” under the  
“client’s policy and the Ministry of Health for [sic] Long Term Care” (Tab 30).  
35. On or around November 1, 2021, the Company issued additional “Policy Compliance”  
letters to employees who had not provided proof of vaccination. According to Compass’  
letters, employees were informed of the client site policy regarding vaccinations on  
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October 1, 2021 and notified that non-compliance would result in a “temporary unpaid  
leave of absence”:  
On October 1, 2021, you were advised about the directive imposed by the province  
of Ontario with respect to vaccinations at Long-Term Care Homes.  
You have advised Compass Group Canada (“the Company”) that you do not intend  
on getting vaccinated and will therefore not be compliant with the legislation at your  
site.  
At the site in which you work, restrictions for site access has been communicated  
and as such you are no longer permitted on site effective November 15, 2021;  
therefore, you will be placed on a temporary unpaid leave of absence. It is our  
hope that all Associates who do not have an approved exemption will comply and  
receive all required dosages for a Health Canada approved Covid-19 vaccine.  
The Company is committed to ensuring that the Health and Welfare of our  
Associates is a priority and that our Clients and Customers are protected from the  
COVID-19 pandemic. To prevent the spread of COVID-19, the Company strongly  
encourages our Associates to get vaccinated as soon as possible. If you need  
assistance in scheduling a vaccine appointment, please speak with your Manager  
(Tab 31).  
36. The following employees were placed on a temporary unpaid leave of absence:  
Bargaining Unit  
Date ROE  
issued  
Name  
Position  
Client Work Site  
Jaber Sakka  
Dietary Aide  
Provincial LTC  
Provincial LTC  
Northride LTC  
Northride LTC  
2021-11-01 (Tab  
32)  
Vesna Petricevic Dietary Aide  
2021-11-01 (Tab  
32)  
Lina Tumpa  
Light  
Cleaner  
Duty Provincial LTC  
Duty Provincial LTC  
Duty Provincial LTC  
Provincial LTC  
Labdara  
Lithuanian NH  
No ROE issued  
to date  
Danuta  
Romanovska  
Light  
Cleaner  
Labdara  
Lithuanian NH  
No ROE issued  
to date  
Zydrune  
Bajorenaite  
Light  
Cleaner  
Labdara  
Lithuanian NH  
No ROE issued  
to date  
Laurie Pravica  
Laundry Aide  
Ridgeview LTC  
No ROE issued  
to date  
Bijou  
Wakisadila  
Ntoto Dietary Aide  
Provincial LTC  
Centre d'Accueil 2021-11-26 (Tab  
Champlain-FP 32)  
10 of 32  
Jesse Maiurro  
Heavy  
Cleaner  
Duty Provincial LTC  
Beaver  
Northridge LTC  
Ctr-PL  
2021-11-01 (Tab  
32)  
Lisa Mohammed Dietary Aide  
Sherwood Court 2022-02-01 (Tab  
LTC  
32)  
37.  
37. There is a dispute between the parties with respect to the completeness of the list above,  
and in particular the exclusion of Matteus Jedryk, Michael Sinila, Krystyna Grochwicz and  
Irina Lebedinskaya and said list is included in this Agreed Statement of Facts without  
prejudice to the Union’s ability to claim remedies on behalf [sic] these individuals in the  
event that it is successful in establishing Compass’ liability.  
38. Compass is successor to Nutra and CW Services in relation to contracts for work at long-  
term care homes taken over from other service providers where the union previously had  
Collective Agreements with Nutra and CW Services. There are employees who were  
placed on unpaid leaves of absence for being unvaccinated at some locations previously  
serviced by Nutra and CW Services and currently serviced by Compass. The parties  
agree that to the extent Compass may be liable as a successor vis-à-vis unvaccinated  
employees placed on unpaid leave by Nutra or CW Services, the Arbitrator’s ruling in this  
proceeding shall be determinative.  
39. Employees who have applied for Employment Insurance (“EI”) after being placed on  
temporary unpaid leaves of absence on and around October 12, 2021 have had their  
applications denied. For example, Lisa Mohammed applied for EI on and around October  
18, 2021 after she was placed on an unpaid leave of absence. Ms. Mohammed’s EI claim  
for the period October 18 to December 17, 2021 was denied on January 17, 2022 on the  
basis that she was “considered not available for work during this period” (Tab 33).  
[Tabs omitted]  
4. I note that notwithstanding the references in paragraphs 33 and 34 of the ASF, this  
is not a case in which medical or religious exemptions are at issue. Rather, counsel  
of the Union clarified that those paragraphs, and the documents to which they refer,  
are in the ASF only as a further illustration of the Employer “relying” on the position  
of one of the LTC Clients rather than making a decision of its own.  
Arguments for the Parties  
5. I will set out the arguments of the parties in summary form prior to addressing  
certain aspects of those arguments in greater detail later in this decision.  
Argument for The Union  
6. The Union argues the decision to require proof of vaccination was not that of the  
Employer, nor was it made pursuant to a directive or policy of the Employer. Rather,  
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the decision to require proof of vaccination was made initially by the Employer’s  
clients and ultimately by the Ministry of Long Term Care. Thus the decision to deny  
access to the worksites covered by the collective agreements was made by third  
parties, who are not parties to the collective agreements.  
7. The Union states it has been unable to find any case precisely on point but argues  
the most analogous cases are those involving site bans. The Union argues that in  
those cases, where a client of an employer has denied an employee access to the  
worksite and the employer has not adopted the client’s reason for doing so,  
arbitrators have consistently found the appropriate response by the employer is to  
consider whether there is other work available in the bargaining unit and, if not, to  
lay the employee off. The Union cites: GDI Services (Canada) LP v Labourers’  
International Union of North America, Local 183, 2018 36673 (Gray);  
Babcock And Wilcox v UA Local 488, 1995 CarswellAlta 1476, [1995] A.G.A.A. No.  
10, 41 C.L.A.S. 103, 50 L.A.C. (4th) 266 (Power); and Waste Management of  
Canada Corp and TC Local 419 (Beaul), 2013 CarswellOnt 11578, [2013] O.L.A.A.  
No. 335, 115 C.L.A.S. 237 (Randall).  
8. The Union reviews the facts and the documents referenced. It argues that the  
Employer consistently conveyed to its employees that its clients, and subsequently  
the Ministry, were driving the vaccine mandate. The Employer conveyed to its  
employees the requirements of its clients; never once did the Employer say it was  
imposing a requirement that its employees be vaccinated. .  
9. The Union points to the language of the collective agreements. The relevant  
language of each is similar. The management rights clauses specifically refer to the  
right of the Employer to lay off employees. By contrast there is no express  
reference to the right to place employees on an unpaid leave of absence under the  
management rights clauses. The leave of absence provisions contemplate a  
request by the employee, not a unilateral action by the Employer of placing an  
employee on a leave of absence. The lay-off clauses, by contrast, contemplate  
unilateral action by the Employer. They are, therefore, the best fit for unvaccinated  
employees who were unable to perform the work available work because they did  
not comply with a third party requirement to be vaccinated.  
10. Because the affected employees should have been laid-off the Records of  
Employment issued by the Employer indicating they were on unpaid leaves of  
absence should be rescinded and replaced with records of employment indicating  
they were laid off.  
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11. In anticipation of the Employer arguing that the infectious disease emergency leave  
set out in s. 50(1.1)(b)(iv) of the Employment Standards Act, 2000 applies, the  
Union argues that properly interpreted the provision has no application to the  
affected employees in this case. Rather, the Union argues, leaves under the  
Employment Standards Act, 2000 are in the nature of employee entitlements taken  
at the behest of the employee. The affected employees did not elect to take the  
infectious diseases emergency leave, therefore it has no application. Further, the  
affected employees were not acting under the direction of the Employer, they were  
acting under the direction of the third party LTC Clients. That is another reason why  
the provisions do not apply.  
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Argument for the Employer  
12. The Employer argues that it had a COVID vaccination policy. That policy mirrored  
that of its clients and went through multiple iterations. With respect to the Union’s  
attempt to analogize this situation to a site ban, the Employer notes that all of the  
cases provided by the Union are ones in which the third party controlling access to  
the site targeted a specific individual, banning them from the site. The employer in  
those cases placed those individuals on lay-off because it did not have other  
bargaining unit work available. In this case, by contrast, there is bargaining unit  
work available for the affected individuals if they choose to get vaccinated. With  
respect to the Union’s argument that the management rights clauses do not  
expressly state the Employer has the right to place employees on a leave of  
absence, the Employer argues its rights under those clauses are much broader than  
those specifically enumerated. They include the right to make reasonable rules.  
The Employer did so in this case, and that is a valid exercise of management rights.  
13. The Employer argues it clearly and repeatedly communicated to its employees that  
if an LTC client would not permit unvaccinated employees of the Employer to work  
on its premises, then the Employer would remove the employee from the workplace  
and place them on an unpaid leave of absence for the duration. In doing so, the  
Employer was communicating its own policy response: it could have made other  
choices, for example attempt to find the affected employees other work, lay them off  
or terminate their employment. The communications to the Employer’s employees  
came from the Employer, not its LTC Clients. The LTC Clients never issued a site  
ban against any of the affected employees. Rather, it was the Employer which  
made the decision to place them on unpaid leaves of absence.  
14. Because the affected employees were on unpaid leaves of absence, the records of  
employment were correct and issued in accordance with Service Canada  
Guidelines.  
15. The Employer provided all of the COVID-19 vaccination policy decisions as of April,  
2022 of which it was aware. The Employer argues those cases show that a  
consensus has developed that where mandatory vaccination policies “make sense",  
employees who fail to comply with the vaccination requirement are “rightfully” put on  
unpaid leaves of absences by their employers. The cases provided by the  
Employer were:  
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1.  
Bunge Hamilton Canada, Hamilton Ontario v. United Food and  
Commercial Workers Canada, Local 175, 2022 43 (Herman)  
2. Chartwell Housing REIT (The Westmount, The Wynfield, The Woodhaven  
and the Waterford) and Healthcare, office and Professional Employees Union,  
Local 2200, 2022 6832 (Misra)  
3.  
Electrical Safety Authority and Power Workers’ Union (Interim  
Award)(November 11, 2021)(Unreported)(Stout)  
4.  
Electrical Safety Authority and Powers Workers’ Union, 2022 343  
Extendicare Lynde Creek Retirement Residence and UFCW, Local 175,  
(Stout)  
5.  
Re (April 4, 2022)(Unreported)(Raymond)  
6. Hydro One Inc. and Power Workers Union (November 22  
2021)(Unreported)(Stout)  
7.  
Hydro One Inc. and Power Workers’ Union (January 31 2022)  
(Unreported)(Stout)  
8.  
Ontario Power Generation and The Power Workers’ Union (November 12,  
2021) (Unreported)(Murray)  
9.  
Power Workers’ Union v. Elexicon Energy Inc., 2022 7228  
(Mitchell)  
10.  
Revera Inc. (Brierwood Gardens et. al.) and Christian Labour Association  
of Canada, 2022 28657 (ON LA)(White)  
11.  
Teamsters Local Union 847 v. Maple Leaf Sports and Entertainment, 2022  
544 (Jesin)  
12.  
Teamsters Local Union 938 and Purolator Canada Inc. (March 15,  
2022)(Unreported)(Wilson)  
13.  
Toronto District School Board and CUPE, Local 4400, 2022 22110  
(ON LA)(Kaplan)  
14.  
United Food and Commercial Workers Union Canada, Local 333 v.  
Paragon Protection Ltd., [2021] O.L.A.A. No. 435 (Von Veh)  
15.  
UNIFOR, Local 973 and Coca-Cola Canada Bottling Limited, 2022  
20322 (Wright)  
16.  
USW, Local 5319 and Securitas Transport Aviation Security Ltd., Re,  
2022 CarswellNS 163 (Richardson)  
16. The Employer argues the various letters it sent to its employees establish that it had  
its own policy. But even if that policy could have been more explicitly stated, an  
employer can by its actions adopt the policies of its client: Bloorview School  
Authority and CUPE Local 4400 (C-10050), [2017] O.L.A.A. No. 135 (Knopf);  
Finning (Canada) v. I.A.M. & A.W., Local 99, [2005] A.W.L.D. 3112 (Sims); and  
15 of 32  
Union des employés et employés de service, Local 800, and Services ménagers  
Roy ltée, 2021 QCTA 570 (Nadeau). That is what happened here.  
17. Strictly in the alternative, the Employer argues that s. 50(1.1)(b)(iv) of the  
Employment Standards Act, 2000 applies to the affected employees: they were  
under a direction given by the Employer in response to a concern of the Employer  
that they may expose other individuals in the workplace to a designated infectious  
disease, and thus were entitled to infectious disease emergency leave. The  
Employer rejects the proposition advanced by the Union that “entitled” means at the  
election of the employee. Rather the Employer argues that “entitled” refers to the  
fact that the employee is entitled to be on leave and have job protection as opposed  
to the employer saying to the employee because you are unavailable for work you  
are deemed to have abandoned your job.  
Reply for Union  
18. In reply the Union reiterates that the Employer did not adopt its own policy. It notes  
that the Employer did not post documents or consult with the Union as it would have  
been required to do under the terms of the collective agreements if it was in fact  
adopting its own policies. The Union argues Bloorview is distinguishable on the  
facts. It identifies Securitas as the case provided by the Employer which is closest  
on the facts to the present case, but notes it does not appear the union in that case  
argued that the employees were in fact laid-off.  
Analysis and Decision  
19. I begin with a review of the site ban cases cited by the Union.  
20. In GDI, the employer provided cleaning services to Cadillac Fairview at the TD  
Centre. Cadillac Fairview received a complaint from a customer with respect to a  
cleaner employed by GDI. Cadillac Fairview directed GDI to remove the employee  
from its site because of “unacceptable behaviour” on her part. GDI placed the  
employee on suspension with pay until further notice. Subsequently, GDI sent the  
employee a letter which noted that “as a result of our client’s decision”, GDI was  
unable to permit the employee to work at that location. The letter stated that as GDI  
had no other available work, she was being placed on indefinite lay-off.  
21. A grievance was filed. The union took the position that the lay-off was disguised  
discipline, which the employer was required to justify on a just cause standard. In  
16 of 32  
argument, the union appeared to acknowledge that the “site ban” cases stood for  
the principle stated at para. 28 of York BRT Services LLP, [2014] OLAA No. 180  
(reproduced at para. 20 of GDI):  
28. Similar issues have arisen in other contexts in the past, where a third party having  
control of premises or property has refused access to an employee of an employer  
providing a contracted service at the third party site. Generally speaking, the OLRB and  
arbitrators have concluded that an employer is not entitled to discharge an employee in  
such circumstances without establishing just cause for discharge but is entitled to layoff  
a barred employee, without establishing that the third party had valid reason for barring  
access to the employee, until such time as other bargaining unit work becomes  
available.  
[My emphasis.]  
22. As I have highlighted, York BRT does not describe the general state of the law as  
being that in the face of a site ban an employer may only lay off the affected  
employee, in the absence of other bargaining unit work. Rather, it describes the  
general state of the law as an employer is not entitled to discharge an employee for  
cause simply on the basis of the site ban, but is entitled to lay the employee off in  
such circumstances.  
23. In GDI, the union argued that this principle should no longer be followed, citing a  
number of decisions. Arbitrator Gray considered each of the cases cited by the  
union and appears to have either declined to follow them or found that they were not  
in fact inconsistent with this principle.  
24. The Union notes that Arbitrator Gray considered an argument that Cadillac  
Fairview’s actions arose from authority delegated or conferred upon it by GDI  
pursuant to contract, which arguably conflicted with the contractual obligations of  
GDI to the union under the collective agreement. He rejected the premise of this  
argument, finding that Cadillac Fairview’s right to control access to the site did not  
arise from its contract with GDI. He also found that once Cadillac Fairview banned  
the employee from working on the site, she “lost the legal capacity to perform such  
work since she could not lawfully enter the premises where the work was  
performed.” Arbitrator Gray also noted that this would be true whether or not  
Cadillac Fairview had just or fair reason for the ban.  
25. The Union argues similar logic applies to the case before me. The Union argues  
that the LTC Clients’ decisions to require all employees and contractors to be  
vaccinated, and to bar those who were unvaccinated, were independently made. It  
17 of 32  
is the LTC Clients’ policies which preclude the unvaccinated employees from  
working at the facilities. The Union is not in a position to challenge the  
reasonableness of those vaccination policies, and in any event the reasonableness  
of those policies is not at issue before me. What is at issue is how the Employer  
chose to respond to those policies.  
26. Returning to GDI, the Union notes that Arbitrator Gray considered whether GDI had  
adopted Cadillac Fairview’s allegations of wrongdoing. If it had, then its decision  
could have been considered disciplinary, and its actions would have been subject to  
review on a just cause standard. Arbitrator Gray concluded, however, that GDI had  
not adopted Cadillac Fairview’s allegations.  
27. The Union argues similar logic applies to the case before me. The Employer did not  
adopt the policies of the LTC Clients, it simply was “the messenger” and its actions  
were entirely in response to those policies.  
28. The Union then points to Arbitrator Gray’s conclusion that “on lay-off” was an “apt  
description” for what occurred (see para. 94). The Union argues similarly that is the  
most apt description for what the Employer has done in this case.  
29. I note that Arbitrator Gray’s statement that the lay-off was an apt description for how  
GDI had responded was made in response to an argument by the union before him  
that GDI’s actions could not be described as a lay-off, and that therefore they must  
be considered a dismissal subject to the just cause provision. As Arbitrator Gray  
noted, however, the issue before him was not whether the employees were laid off.  
It was whether they had been discharged, requiring GDI to justify its actions on a  
just cause standard. A determination that the employee had not been “laid off”  
within the meaning of the collective agreement did not mean that they must be  
considered to have been discharged. As Arbitrator Gray stated (at para. 94):  
“On layoff” is an apt description of that status, even if it was not a layoff of the  
sort to which any particular provision of the collective agreement applies. In any  
event, the issue here is one of substance, not semantics. If the collective  
agreement does not expressly contemplate describing an employee as “on  
layoff” in these circumstances, that does not transform the grievor into a  
discharged employee.  
30. Babock & Wilcox is a construction sector case. The contractor imposed a site ban  
on two employees, employed by two separate sub-contractors. Each of the two  
employers terminated the employee who was subject to site ban imposed by the  
18 of 32  
same third party. In terminating the employees, the employers relied upon the  
reasons provided by the contractor (the third party) for imposing the site ban.  
Grievances were filed alleging termination without cause. At the arbitration hearing,  
the employers were unable to substantiate the information from the third party.  
Arbitrator Power therefore concluded that the employees were wrongfully  
discharged. He continued:  
18  
Unfortunately, that does not gain them much ground. The situation which  
confronted the employers was simple: the grievors had been banned from the Alpac site,  
and their employers had no other work available for them. Therefore, the employers  
were entitled to lay them off, and that is the action which they should have taken in this  
case. The grievors' employers are directed:  
(1)  
work, not due to misconduct, and  
(2) to advise Employment and Immigration Canada, and any other third party to  
to amend their records to indicate that the grievors were laid off due to lack of  
whom they may have passed information stating or suggesting that the grievors were  
discharged for disciplinary cause, that the grievors were laid off due to lack of work, not  
due to misconduct.  
[Emphasis added.]  
31. The Union relies upon the highlighted statement, that the employers in the cases  
before him were not only entitled to lay off the employees, but that they “should  
have” done so. It argues the same principle applies to the case before me. I note  
the parties arguments as recorded by Arbitrator Power did not address this issue.  
Rather they were directed to whether the site ban itself constituted just cause for  
termination.  
32. In Waste Management, the employer provided waste management services to a  
third party, the Region of Peel, pursuant to a commercial contract. The Region of  
Peel requested an employee of Waste Management be removed from working on  
the contract, citing multiple customer complaints. The employer initially transferred  
the employee to a bargaining unit position which did not involve working on the  
Region of Peel contract. Subsequently, the employee was bumped from that  
position (by another, more senior employee who had also been banned by the  
Region of Peel). The employer then laid off the employee. A grievance was filed  
alleging unjust dismissal. At arbitration, the employer maintained the position that  
the employee had not been terminated for cause, but rather had been laid off.  
Arbitrator Randall stated:  
38. I accept the well-established proposition that an employer who receives instructions  
from a client to remove an employee from a site controlled by the client, must act on  
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those instructions and that to do so does not constitute a discharge: see Babcock &  
Wilcox v. U.A., Local 488 (1995), 50 L.A.C. (4th) 266 (Alta. Arb.) and any number of  
cases which have followed same.  
39. The issue for me, as it is in much of the case law, is one of remedy. If the Region  
has banned the Grievor from work on the contract, and the work on the contract is the  
only bargaining unit work available, and the Employer is bound by the commercial  
contract to accede to the Region's wishes to 'summarily remove an employee from the  
work if he is the subject of consistent complaints' in order to avoid the termination of the  
contract, what remedy is available?  
…..  
41  
In the final analysis, there is nothing in the collective agreement that contemplates  
the circumstances of the Grievor. There is no provision which addresses the Region's  
right to ban a residential driver or the consequences of same. The Employer relies on  
the language of article 8.02, which provides that 'lay-offs shall be on the basis of reverse  
seniority, providing the employees who remain are capable of performing the jobs that  
are available'. While I agree with the Union that this notion of 'capability' is a poor fit with  
the Grievor's circumstances, it also has to be said that this is the only language in the  
collective agreement remotely germane to the matter.  
Similarly, the Union before me argues that the lay-off language of the collective  
agreement is the only language which “remotely” applies.  
33. Notwithstanding Arbitrator Randall’s formulation, the issue before him was whether  
the employer’s actions constituted a “lay-off”, as it maintained, or termination for just  
cause as the union maintained. He was not called upon to determine whether the  
employer could have responded in some other manner, such as a leave of absence.  
34. In my view, these site ban cases do not assist the Union before me for the following  
reasons.  
35. First, these site ban cases establish only that an employer is entitled to lay off an  
employee in the face of a third party site ban, and if it does so it is not required to  
justify its decision on a just cause standard. They do not establish that an employer  
is required to lay off such an employee. They do not consider whether an employer  
is entitled to place such an employee on a leave of absence.  
36. Second, and in any event, the site ban cases are factually different from the case  
before me. In each of the site ban cases relied upon by the Union, a third party  
advised the employer that a specific employee was permanently banned from the  
site or directed the employer to permanently remove a specific employee from the  
site. There is no such specificity in the case before me, nor is the restriction on  
20 of 32  
access permanent. Rather, the LTC Clients, and the Ministry of Long Term Care,  
have established a rule or requirement with which anyone working on the site must  
comply. Once an individual complies with the rule or requirement they will be  
permitted to re-enter the site.  
37. The analogous cases are not “site ban” cases, but rather “site access” cases. In  
those cases the issue is the application of a third party rule or requirement of  
general application. An example is Finning (Canada). There, a company called  
Albian controlled access to a large tar sands work site. Albian entered into a  
contract with Finning for the purchase, assembly, repair and maintenance of a  
“significant quantity” of heavy haulers. Finning was bound to a collective agreement  
with the IAM; Albian was not a party to the collective agreement. Albian imposed a  
policy requiring all individuals working on the site to be tested for drugs prior to  
accessing the site. The IAM grieved. The employer, Finning, took the position that  
an arbitrator appointed under the Finning-IAM collective agreement had no  
jurisdiction to adjudicate over the terms of the drug testing policy of a third party,  
Albian. Arbitrator Sims concluded that he had jurisdiction to determine whether  
Finning had, by its actions, adopted the policy of Albian.  
38. A similar issue was raised in Bloorview. In that case, the employer ran a school on  
the premises of a children’s hospital for the patients of the hospital. The hospital  
had adopted a policy requiring its employees and others from organizations  
operating on its site to be vaccinated against influenza or wear a mask during the flu  
season. The employer developed its own policy, using that of the hospital as a  
template. The policy was adopted by the board of trustees of the employer. A  
grievance was immediately filed. The employer decided not to implement its policy  
but rather to hold it in abeyance pending the outcome of the arbitration. In the  
interim, the employer directed its employees to comply with the hospital’s policy.  
The union argued that in doing so, the employer had breached the collective  
agreement and abdicated its managerial responsibility under the collective  
agreement with regard to health and safety.  
39. Arbitrator Knopf rejected the premise of the union’s argument. Rather, she held the  
employer had “imposed and therefore assumed the responsibility for the Policy” [see  
para. 30]. In her analysis, she considered Finning (Canada) and her summary of  
that decision, and the conclusion which she drew, are helpful.  
32  
Finning (Canada) v. I.A.M. & A.W., Local 99, supra, is more instructive  
because it provides a thorough analysis of "Site Access" and "Site Control" case  
21 of 32  
law. It is also interesting because it deals with an employer directing compliance  
with a third party's policy. Arbitrator Sims' review of previous awards points out  
that a third party cannot be brought in to defend its own policy in an arbitration  
between an employer and its trade union, (para. 37). His analysis also focuses  
on the issue of how an employer, governed by a collective agreement with its  
own employees, deals with clashes between its customer's rules and the terms of  
the collective agreement. Arbitrator Sims points out that all the cases turn on the  
degree of control that the third party has on the site or workplace. This led him to  
the conclusion that the enforcement of employees' rights at arbitration will  
depend upon whether an employer has done or failed to do something that  
triggers its obligations under the collective agreement or that are imposed upon it  
by a law that would be enforceable through the collective agreement or on the  
basis of the Weber jurisprudence, [see para. 84]. Therefore, an employer's  
treatment or assumption of control over a third party's policy or rule is a critical  
factual element in determining an arbitrator's jurisdiction over the employer's  
conduct or the policy itself. The Finning (Canada), supra, case acknowledged  
that an employer's conduct can be viewed as implicitly adopting and enforcing a  
third party's rules as its own, [see para. 92]. It concluded, ".... no collective  
agreement violation arises unless and until the Employer not the third party,  
takes some active step to impose the third party policy as its own", [para. 98]. It  
was on that basis that Arbitrator Sims accepted jurisdiction in the Finning, supra,  
case. It, therefore, follows that there can be an arbitrable issue when an  
employer takes steps to impose a third party's policy on its own bargaining unit.  
By doing that, an employer is effectively treating the third party's policy as its own  
and will, therefore, be responsible if that policy offends the collective agreement  
or an employment related statute.  
[My emphasis.]  
40. Arbitrator Knopf noted that there was no evidence before her that the employer had  
“adopted” the hospital’s policy. She found this to be of no consequence. What  
mattered was “the reality of the situation”: the employer had imposed upon its  
employees the requirements of the hospital’s policy. She stated [at para. 34]:  
The absence of evidence to show that the Employer "adopted" the Hospital  
Policy is of no consequence when the available evidence exposes the reality of  
the situation. "Actions speak louder than words." This is a universal maxim. What  
an employer actually does can be more important than what it puts in writing or  
formalizes into a resolution at a board meeting. In September 2014 and every  
Fall thereafter, this Employer directed members of this bargaining unit to comply  
with the Hospital's Influenza Policy. That directive was in substance and in fact  
an exercise of this Employer's managerial authority to apply a working condition  
on this bargaining unit. It is not important why the Employer did this, whether it  
had to or not, or whether this happened simply because it believed it had to do  
that in order to comply with the Licence and Services Agreement. What is  
important is that the Employer did apply the Influenza Policy to this bargaining  
22 of 32  
unit. As such, this Employer treated the Policy as its own and is therefore  
responsible for it. The fact that the Policy was written by some entity other than  
this Employer is irrelevant to the issue of whether it is enforceable by the  
Employer. Since this Employer decided to impose the Policy on the bargaining  
unit all that matters is whether the Policy complies with the Collective Agreement  
and the law.  
41. In the case before me, first the LTC Clients and then the Ministry of LTC imposed  
vaccination requirements upon the LTC homes.  
42. I pause here to note that it is correct, as argued by the Union, that the Ministry of  
LTC Directive applied to the “licensees” of the LTC homes, and that while the LTC  
Clients are licensees, the Employer is not. I note, however, that pursuant to the  
Directive, licensees were required to “ensure that no staff, support workers, student  
placements or volunteers who have not met” the the vaccination requirements  
specified by the Directive “attend the home for the purposes of working”. “Staff” is  
defined under the Directive as having the same meaning as under the Long-Term  
Care Homes Act, 2007. Section 2(1) of that Act provides:  
In this Act,  
…..  
“staff”, in relation to a long-term care home, means persons who work at the home,  
(a) as employees of the licensee,  
(b) pursuant to a contract or agreement with the licensee, or  
(c) pursuant to a contract or agreement between the licensee and an employment  
agency or other third party; (“personnel”)  
[My emphasis.]  
The LTC Clients were, therefore, required to ensure that employees of the Employer  
working at their homes complied with the vaccination requirements specified by the  
Directive. In any event, the LTC Clients did so.  
43. I turn to consider whether the Employer has effectively adopted the policy of its LTC  
Clients as its own or was, in the words of the Union, simply “the bearer of bad  
news”.  
44. The Union refers to paragraph 13 of the ASF, and in particular the excerpt of the  
letter sent by the Company to its employees on or about March 24, 2021:  
23 of 32  
Our clients may not permit unvaccinated associates to work if there is an outbreak in the  
home. This could result in you being removed from the unit and placed on an unpaid  
Leave of Absence for the duration of the outbreak.  
The Union argues this illustrates that the Employer was simply communicating the  
requirements of its LTC Clients. I disagree. The letter not only communicated the  
requirements of the LTC Clients, but also indicated that failure by the employee to  
comply with those requirements “could result in you being removed from the unit  
and placed on an unpaid Leave of Absence for the duration of the outbreak”. While  
the letter may be ambiguous about who would remove the employee from the LTC  
Client’s home, as subsequent events illustrated it was the Employer which did so.  
In any event, the placement of an employee on an unpaid Leave of Absence is an  
action of the Employer not an LTC Client. Employees were being advised that if  
they did not comply with LTC Clients’ requirements, the Employer would take action.  
45. The Union relies upon the following portion of paragraph 14 of the ASF:  
On June 24, 2021, the Company advised all management team members working in  
long-term care homes about the application of the Ontario Minister’s Directive on the  
long-term care home COVID-19 immunization policy. As of July 1, 2021, all Compass  
managers working in long-term care in Ontario would be required to enforce the  
requirements of their long-term care client’s COVID-19 immunization policy and the  
provisions of the Minister’s Directive (Tab 9).  
The Union notes that at this point, the LTC Clients’ policies did not require  
vaccination, but argues that even then the Employer was simply communicating the  
requirements of its clients. I disagree. The Employer advised its managers that  
they “would be required to enforce the requirements of the their long-term care  
client’s COVID-19 immunization policy and the provisions of the Minister’s  
Directive”.  
46. The Union points to portions of the “Ontario Minister’s Directive: LTC Home COVID  
19 Immunization Policy FAQ’s” prepared by the Employer and provided to its  
employees in the summer of 2021 (Tab 10 referenced at para. 14 of the ASF):  
Q Can’t we just force the associates to get vaccinated as a condition of continued  
employment?  
A Compass is not mandating COVID-19 vaccinations at this time and will continue to  
follow the direction of our clients or the respective Health Authorities.  
….  
24 of 32  
Q Will we mandate new hires being vaccinated for COVID-19 going forward?  
A Compass is not making vaccination mandatory for associates at this time. Compass  
strongly encourages and recommends that all associates get vaccinated with a Health  
Canada approved COVID-19 vaccine. Compass will continue to adhere to client and/or  
Health Authority requirements surrounding COVID-19 vaccinations.  
The Union argues this is another illustration of the Employer simply communicating  
the requirements of its LTC Clients. I disagree. The “direction” of the LTC Clients  
which the Employer indicated it “will continue to follow” were directions applicable to  
anyone working at a particular LTC home. The Employer has expressly indicated  
that it “will continue to adhere to client and/or Health Authority requirements  
surrounding COVID-19 vaccinations”. In doing so, it has effectively adopted those  
“client and/or Health Authority requirements” as its policy.  
47. The Union points to the following in the same Question and Answer document as a  
further illustration of the Employer simply communicating the requirements of its  
LTC Clients:  
Q How will CGC [i.e. the Employer] address situations where a client’s policy indicates  
that employees will be placed on unpaid admin leave if they do not comply with their  
Immunization policy?  
A In circumstances where the client imposes a condition on Compass and its  
associates that access to site is not permitted unless the associate has completed the  
required doses of vaccination prior to being admitted (for example, in a designated  
outbreak at a Long Term Care facility) the Company will review the matter. Compass  
reserves the right to redeploy the associate or place them on an unpaid leave until which  
[sic] time site access is granted.  
I disagree with the Union. The question portion of this statement can only be read  
as referring to employees of the client: a client does not have the power to place the  
Employer’s employees on unpaid administrative leave. The answer portion of this  
statement pivoted to a discussion of the client requiring other workers to be  
vaccinated in order to access its site. It indicated that the Employer will review the  
matter and consider whether redeployment to another site is possible. Where  
redeployment was not possible, the Employer reserves the right to place the  
employee on an unpaid leave. It was the Employer, not the client, which would  
place its employees on unpaid leave if they did not meet the vaccination  
requirement.  
48. The Union notes that after the summer of 2021, first the individual LTC Clients and  
then the Ministry of Long Term Care adopted policies making vaccinations  
25 of 32  
mandatory for anyone working in long term care homes (citing paras. 16, 17, 19 and  
21 of the ASF). Subsequently, the Employer sent three types of letters to its  
employees working for LTC Clients. Each of these letters was generally based on a  
template provided by the Employer to local managers.  
49. The first template letter was headed “Client Site Requirements - Vaccinations”. The  
letter notified employees of the client’s policy applicable to the site at which they  
worked, and the date on which it would be effective. Where the client’s policy  
required vaccination, the letter requested the employee provide confirmation of  
vaccination to the Employer and consent to release of that information to the client.  
The letter concluded:  
Compass will continue to keep associates updated on any changes by the client or  
applicable legislation, and provide support in complying with this mandatory requirement.  
Should you have any questions, please speak with your manager or contact the HR  
Service Centre at ##.  
50. The second template letter was headed “Client Site Requirements - Policy  
Compliance”. This letter was sent to employees who had advised the Employer that  
“you do not intend to be compliant with the (policy) (legislation) at your site.” It noted  
the date on which the employee had previously been advised of “the (client policy on  
vaccinations) (legislation/directive imposed by the province of Ontario with respect  
to vaccinations at your site).” It continued:  
At the site in which you work, restrictions for site access has been communicated and as  
such you are no longer permitted on site effective DATE; therefore, you will be placed on  
a temporary unpaid leave of absence. It it is our hope that all Associates who do not  
have an approved exemption will comply and receive all required dosages for a Health  
Canada approved Covid-19 vaccine.  
51. The third template letter was headed “Client Site Requirements - Compliance  
Refusal”. It was sent to employees who “definitively advised Compass Group  
Canada (“the Company”) that you have chosen not to be vaccinated against COVID-  
19 and will therefore not be compliant with the policy at your site.” It noted the date  
on which the employee had been advised about “the client policy on vaccinations”.  
It stated:  
Unvaccinated Associates are not permitted to access the site where you work.  
Accordingly, you will no longer be permitted on site effective DATE. You will be placed  
on a temporary unpaid leave of absence to permit you time to comply with the policy.  
Company Associates have been given ample notice of this requirement and we expect  
all Associates to comply.  
26 of 32  
52. The Union placed particular emphasis on a letter sent to employees of working at  
Revera Long Term Care homes, which appears to be a variant on the second  
template letter. The letter in question states:  
This letter confirms that you have informed us that you have chosen not to be vaccinated  
against COVID-19.  
Revera’s policy is clear that all Associates of Compass Canada Ltd. (“Compass”)  
working at its sites must be fully vaccinated by October 12, 2021 otherwise Revera will  
not permit access to the site.  
Compass Associates have been given ample notice of this requirement and we expect  
all Associates to comply. If you do not wish to provide your vaccination status, or choose  
not to be vaccinated, that is your right. However, many of Compass’ clients are  
implementing similar policies and Compass may not be able to place you at an alternate  
location where vaccination is not required. Consequently, your employment may be  
impacted.  
We strongly encourage you to revisit your position and work with your manager to  
establish a timeline for your vaccinations to be completed.  
[Emphasis supplied by the Union.]  
The Union argues this letter shows that the Employer was not mandating  
vaccination itself, rather its clients were. This is clearly the case, the Union argues,  
with respect to the first emphasized sentence. It is implicit, the Union argues, in the  
second emphasized sentence because if the Employer itself was mandating  
vaccines there would be no need to consider the policies of individual clients.  
53. The Union argues that these letters establish that the Employer did not have its own,  
uniform policy with respect to vaccinations. Rather, the Union argues, the Employer  
was simply conveying the expectations of its clients.  
54. I reject the premise of the Union’s argument that in order for the Employer to have a  
policy, it must be uniform and across the board, applicable to all of its employees,  
regardless of where they work and for which client. Not all of the Employer’s  
employees work at sites with mandatory vaccination requirements. It is not difficult  
to imagine attacks on a uniform policy as being unnecessary and hence  
unreasonable as applied to a particular aspect of the Employer’s operations, in  
particular given the size and diversity of the Employer’s operations1.  
1 While the ASF does not specifically refer to the size and diversity of the Employer’s  
operations, they are commonly known to labour arbitrators and beyond dispute. In any event,  
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55. In my view, in referring to the policy of a particular client at a particular site, the  
Employer was adopting its own client and site specific policy. A policy requiring  
employees to comply with the vaccination policies applicable at specific sites in  
order to work at those sites is a policy nonetheless. Where vaccinations were  
required, the first template letter required the employee to provide confirmation of  
vaccination to the Employer, not the client, with consent that the Employer be able  
to release that information to the client. The second template letter refers to  
employees having advised the Employer, not the client, that they would not be  
compliant at their site and indicates they will be placed on a temporary leave of  
absence as of a certain date. It is the Employer, not the client, which was taking this  
action.  
56. The third template letter also refers to the employee having advised the Employer,  
not the client, that they will not be compliant with the policy at their site. It states in  
part:  
Unvaccinated Associates are not permitted to access the site where you work.  
Accordingly, you will no longer be permitted on site effective DATE. You will be placed  
on a temporary unpaid leave of absence to permit you time to comply with the policy.  
Company Associates have been given ample notice of this requirement and we expect  
all Associates to comply.  
[Emphasis added.]  
Once again it is the Employer, not the client, which is advising the employee that  
they are not permitted access to the site. It is also the Employer, not the client,  
which is placing the employee on a temporary unpaid leave of absence. Further,  
this letter makes it clear that the Employer is not simply communicating the client’s  
expectations, but expects its employees to comply.  
57. The Union points to the identical provisions of the collective agreements with  
respect to “Employer Policies” and “Employer Handbook” (Articles 3.02 and 3.03  
respectively of the Provincial Agreement; Articles 3.03 and 3.04 of the Beaver  
Collective Agreement; and Articles 3.02 and 3.04 of the Extendicare Collective  
Agreement). The “Employer Policies” provisions read:  
they are alluded to in the template letters attached to the ASF, which refer to “many of  
Compass’ clients are implementing similar policies” and which conclude with fields for  
“[Manager, First and Last Name]”, “[Job Title]” and “[Sector], a division of Compass Group  
Canada”.  
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Employer policies shall be available in writing and shall be posted at a conspicuous  
place in the workplace. All policies shall be identified by date, and appropriate revision  
code. Any revisions or amendments to the policy shall be presented or disclosed to the  
Union and the Employee within one (1) week of being posted.  
(a) It is agreed by both parties that polices be communicated in the most effective  
manner to ensure compliance.  
The “Employer Handbook” provisions read:  
The Employer’s handbook shall be made available to Employees in a conspicuous area  
in the workplace. [sic] (e.g. Break room) for reference purposes. The Handbook  
contains polices and information which are separate and apart from the Collective  
Agreement. The Employer agrees to review major policy changes with the Union in  
advance of implementation. Future consideration may allow for electronic format to be  
made available for each employee.  
58. The Union notes the Employer did not post a mandatory vaccination policy in the  
workplace and did not review any such policy with the Union in advance of  
implementation. The Union does not argue that the Employer has breached these  
provisions. Rather it argues that this is further evidence that the Employer did not  
have its own mandatory vaccination policy, but rather was simply communicating on  
the policies of its LTC Clients. That is the issue raised on the face of the  
grievances.  
59. It is correct, as argued by the Union, that there is no evidence that the Employer  
posted any of these communications in the workplace. (I note that it did, however,  
send letters individually to each employee, which is presumably “the most effective  
way to ensure compliance”.) It is also correct that the Employer did not review the  
policy with the Union. I accept this is evidence capable of supporting an inference  
that the Employer was not in fact adopting a policy of its own. However, it does not  
compel that conclusion nor does it preclude the conclusion that the Employer had,  
by its actions, adopted site specific policies of its own. Whether, in doing so, the  
Employer breached the provisions of the collective agreements related to the review  
of policies with the Union and the posting of those polices in the workplace was not  
argued before me and is not an issue which I address further.  
60. On balance, I am satisfied that the Employer adopted its own client and site specific  
policy with respect to mandatory vaccinations. That policy provided that employees  
who did not comply would not be be permitted access to the site and would be  
placed on a temporary unpaid leave of absence.  
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61. I turn to the Union’s argument that the collective agreements do not contemplate a  
leave of absence in these circumstances, but rather contemplate a lay-off. As  
observed by the Union, the relevant language of the three collective agreements  
was very similar. The Union made its argument by reference to the following  
language in the Provincial Agreement.  
ARTICLE 3 - MANAGEMENT RIGHTS  
3.01 The Employer shall have the exclusive functioning option to conduct its businesses  
in all respects in accordance with its commitments and responsibilities including the right  
to:  
(a)  
manage, locate, extend, schedule, curtail or cease maintenance  
operations;  
(b)  
determine the number of workers required for any or all operations; judge  
the qualification of employees; assign or re-assign work loads of employees;  
determine and evaluate the content and functions of all jobs and classifications;  
revise work assignments at any time and maintain an efficient mobile work force  
with diverse skills;  
(c)  
equipment; and to introduce new or improved systems and equipment;  
(d) hire, classify, promote, transfer and lay-off employees and to discharge,  
demote and suspend employees;  
(e) establish, revise from time-to-time and enforce reasonable rules of  
determine the types and placement of machines, tools, materials and  
conduct and procedure for its employees, maintain order, discipline and  
efficiency;  
All of the above are subject to the provisions of Articles 4 and 5 herein. It is agreed that  
these functions shall not be exercised in a manner inconsistent with the express  
provisions and intent of this Agreement.  
ARTICLE 20 – BEREAVEMENT AND OTHER LEAVE(S)  
20.01 Employees who have completed their probationary period who suffer  
bereavement within their immediate family will be granted three (3) consecutive days’  
leave of absence with pay to be used with bereavement related matters. It is understood  
that one (1) of the three (3) days paid, shall be the day of the funeral. Immediate family  
in such circumstances means: wife or husband, son or daughter, sister or brother,  
mother or father, mother-in-law, father-in-law, grandparents, grandchild, daughter-in-law  
or son-in-law.  
An employee may be required to provide satisfactory proof of death to substantiate  
his/her claim.  
20.02 This clause shall not apply to any day which is not a regular scheduled work-day.  
20.03 In addition to the three (3) days' leave of absence with pay, the Employer will not  
unreasonably withhold permission for a further leave of absence without pay.  
20.04 Maternity, Adoption and Parental Leave  
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Maternity, Adoption and Parental Leave as per Employment Standards Act.  
ARTICLE 21 - SENIORITY  
….  
21.07 In the event of lay-offs, and for the purpose of recalling those to work who have  
been laid-off, the following factors shall be considered:  
a)  
b)  
seniority;  
ability to perform work available.  
It is agreed that in circumstances where, between two (2) or more employees, ability is  
relatively equal, seniority shall govern.  
62. The Union notes the management rights clause specifically refers to the right of the  
Employer to lay off employees. By contrast there is no express reference to the  
right to place employees on an unpaid leave of absence under the management  
rights clause. The leave of absence provision contemplates a request by the  
employee, not a unilateral action by the Employer of placing an employee on a leave  
of absence. The lay-off clause, by contrast, contemplates unilateral action by the  
Employer. It is, therefore, the best fit for unvaccinated employees who were unable  
to perform the work available work because they did not comply with a third party  
requirement to be vaccinated.  
63. I note the Union’s argument on this issue was based solely on the language of the  
collective agreements: no authority was cited.  
64. I am not persuaded by the Union’s argument.  
65. The management rights clause, as is typical, commences with a general reservation  
of rights to the Employer. The statement that those rights include, among other  
things, the right to lay off employees, does not derogate from the general  
reservation of rights. The general reservation of rights in this case is described as:  
“the exclusive functioning option to conduct its businesses in all respects in  
accordance with its commitments and responsibilities”. This is sufficiently broad to  
include placing employees on an unpaid leave of absence. There was no  
suggestion that in placing the affected employees on an unpaid leave of absence  
the Employer was acting for any reason other than to “conduct its businesses in all  
respects in accordance with its commitments and responsibilities”.  
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66. Management rights clauses must, of course, be read within the context of the  
collective agreement as a whole. Management rights may be expressly or implicitly  
constrained by other provisions of the collective agreement. In this case, the Union  
points to two: the leave of absence provision and the lay-off provision.  
67. The leave of absence provision creates benefits which an employee is entitled to  
elect to use. It does not, however, preclude the Employer from granting other paid  
leaves of absence, nor does it preclude the Employer placing an employee on an  
unpaid leave of absence, rather than treating them as absent without leave.  
68. The lay-off provision in this collective agreement addresses only the manner in  
which employees are to be recalled from lay-off. It does not specify what constitutes  
a lay-off nor does it it place express constraints on the order in which employees are  
laid off. (I do not find it necessary to consider whether there is an implicit obligation  
to lay off in reverse order of seniority.) What constitutes a lay-off under this  
collective agreement must accordingly be determined with reference to general  
principles.  
69. I agree with the Union that a lay-off contemplates a unilateral action by the  
Employer. That unilateral action, however, is a decision to reduce the available  
work with the result that one or more employees are “laid off”. There was no such  
reduction in available work here.  
70. The affected employees were not without work because it was unavailable. The  
affected employees were without work because they did not comply with the  
Employer’s policy or rule that required they be vaccinated against COVID in order to  
access their particular worksite. Because they did not comply with that  
requirement, they were not permitted to enter the workplace. Put differently, rather  
than comply with that requirement, they absented themselves from the workplace.  
They were not laid off by the Employer.  
71. I note that but for the fact that the Employer’s policy provided that in these  
circumstances the affected employees would be placed on an unpaid leave of  
absence, they would have been absent without leave and their employment might  
have been subject to termination on that basis. Whether that would have rendered  
the Employer’s policy unreasonable, in whole or in part, is not an issue I decide.  
72. Given that I have concluded that under the collective agreements the Employer was  
entitled to place the affected employees on unpaid leaves of absence, it is not  
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necessary for me to consider whether the employees were on an infectious disease  
emergency leave as described in s. 50(1.1)(b)(iv) of the Employment Standards Act,  
2000.  
73. Given that I have concluded that the affected employees were properly placed on  
unpaid leaves of absence, it also follows that the Employer did not violate the  
regulations the Employment Insurance Act when it issued ROEs for them to that  
effect.  
74. For all of the foregoing reasons, the grievances are dismissed.  
Dated this 6th day of July, 2022.  
“Ian Anderson”  
Ian Anderson  
Arbitrator  


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