Calgary transit worker reinstated, arbitrator finds termination too excessive

A transit worker who was fired by the City of Calgary for refusing to adhere to the city’s “vaccinate or test” mandate during the COVID-19 pandemic has been awarded his job back.

In a recent decision, arbitrator James T. Casey agreed with Amalgamated Transit Union, Local 583 that the city’s termination of Gino Deveau was too severe.

The City of Calgary’s policy required staff to get vaccinated or participate in regular at-home rapid antigen tests.

Deveau refused to comply with both options. He was placed on an unpaid leave of absence, which became a five-day suspension, before he was ultimately fired.

The City of Calgary argued that Deveau’s termination was justified due to his prior disciplinary record and his “continuing and sustained refusal” to adhere to the policy.

However, the union claimed that the city’s discipline approach was flawed for multiple reasons:

• Deveau’s past disciplinary record shouldn’t have been a factor, given that it was unrelated to the non-compliance issue
• Deveau was the only employee who was terminated — arguing that it was “discriminatory discipline”
• A short suspension or written warning would have been more appropriate in this situation

After hearing both sides, arbitrator Casey ordered the City of Calgary to reinstate Deveau. His suspension was also changed from five days to only one day.

While this matter involved a unionized employee, it’s important for non-unionized workers in Alberta to understand their rights in the event that they find themselves in a similar situation.

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Can I get my job back after I’ve been fired?

If you are a federally regulated employee in Alberta, it’s possible for you to get your job back through an unjust dismissal claim.

In certain situations involving the human rights or Occupational Health and Safety processes, there is also statutory authority to order reinstatement.

However, if you are a provincially regulated worker who was wrongfully dismissed by your employer, a court can’t order the company to give you your job back.

ADDITIONAL RESOURCES
• Which companies are federally regulated in Canada?
• List of federally regulated industries and workplaces

Fired “For Cause”?

While reinstatement may not occur in most cases, a court can determine if the decision to fire a non-unionized employee for cause was too severe.

In matters involving terminations related to vaccination status, this analysis could be vital.

Considered the harshest punishment in an employer’s arsenal, this type of dismissal is reserved for the worst workplace offences, such as serious insubordination, theft, or assault.

In this situation, your boss doesn’t have to provide you with a severance package and you can’t access Employment Insurance (EI) benefits.

WATCH: Employment lawyer Lior Samfiru explains what rights employees have if they are being fired or let go on an episode of the Employment Law Show.

However, to justify firing you for cause, the company must prove progressive disciplinary measures were applied and that a lesser penalty wouldn’t be suitable, which is very hard to do.

In our experience, most non-unionized employees don’t meet the conditions necessary for this type of dismissal and are entitled to severance pay.

If you are fired or let go for any reason, contact an experienced Alberta employment lawyer at Samfiru Tumarkin LLP.

We can review your situation, assess your legal options, and help you secure the compensation you deserve.

SEE ALSO
• Termination without cause: What employees need to know
• Do I have to look for a new job after being fired?
• Employment Law Show: Things you shouldn’t do before seeking legal counsel

How is severance pay calculated?

In Alberta, severance for non-unionized employees can be as much as 24 months’ pay.

This includes individuals working full-time, part-time, or hourly in the province.

The amount of compensation you are entitled to is calculated using several factors, including:

• Age
• Length of service
• Position at the company
• Ability to find new work

To figure out how much you could be owed, use our firm’s free Severance Pay Calculator. It has helped millions of Canadians determine their severance entitlements.

If your company doesn’t provide you with the correct amount, you have been wrongfully dismissed and should our firm immediately.

LEARN MORE
• Severance pay for provincially regulated employees
• Rights to severance for federally regulated workers
• Severance packages in a recession

My boss is pressuring me to sign a new employment contract after being reinstated, what should I do?

If you get your job back in Alberta, you shouldn’t be required to sign a new employment contract. Since the termination was deemed to be illegal, the terms and conditions of your employment should be the same.

However, if you do receive a new agreement from your employer after you are reinstated, don’t accept anything before contacting Samfiru Tumarkin LLP. The company can’t legally force you to sign it immediately or even a few days after it was provided to you.

In most cases, employment contracts take away key protections that would otherwise be available to non-unionized employees in Alberta.

Our experienced employment lawyers can review the agreement and ensure that your workplace rights are properly protected.

LEARN MORE
• Starting a new job? Here’s how an employment contract could limit your rights
• ’60 days or more’: Is it an enforceable termination clause?
• Employment Law Show: 5 things to know about employment contracts

Can my boss make major changes to my job after I’ve been reinstated?

Employers in Alberta can make contractually agreed-to changes to a non-unionized worker’s job.

In order for a change to be valid, the employee must accept the modification and they have to receive some additional benefit as “consideration.”

Potential benefits could include:

• A signing bonus
• Extra vacation days
• More flexibility working remotely

If significant adjustments are made to the terms of your employment without your consent or reasonable notice, there is a very good chance that you can treat it as a constructive dismissal.

In this situation, the law allows you to quit your job and pursue full severance pay.

However, you shouldn’t resign until an experienced Alberta employment lawyer at Samfiru Tumarkin LLP confirms that you have been constructively dismissed.

ADDITIONAL RESOURCES
• What Albertans need to know about changes to their job
• Changes to your employment in B.C.: Your rights

My boss is pressuring me to quit after my reinstatement, what should I do?

While your employer might not be happy to have you back at work, the company can’t pressure or force you to resign.

If your boss is influencing you to step down, document their attempts. Keep any letters, emails, or text messages that show how your employer is pressuring you to quit your job.

Once you have gathered all of the relevant documents, don’t resign before contacting our firm. You might have grounds for a constructive dismissal claim.

Already resigned?

If you are ultimately forced to quit your job for any reason, connect with our firm as soon as possible.

In addition to severance pay, you could be owed compensation for any damages associated with the end of your employment.

SEE ALSO
• Employment Law Show: Facts about forced resignations
• Employment Law Show: What your employer legally can’t do
• Employment Law Show: Situations that trigger legal disputes

Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Alberta, B.C., and Ontario have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are legally entitled to.