Metrolinx employees launch $2 million in claims over vaccine mandate, unpaid leave

At least a dozen former Metrolinx employees have filed wrongful dismissal claims, totalling over $2 million, against the Crown agency. Long-serving workers, including senior managers, were suspended without pay after refusing to comply with Metrolinx’s vaccine mandate.

The employees are being represented by employment lawyers at Samfiru Tumarkin LLP, including partner Stan Fainzilberg. Two of his clients, Michael Bogias and Peter Rozanski, spoke to the Toronto Star about their situation.

Bogias was a 10-year Metrolinx employee who worked as a senior manager at the Union Station Rail Corridor. Rozanski, a five-year employee who oversaw operations and commercial management for the company, argued that Metrolinx failed to provide any accommodation. The agency is also withholding six weeks of vacation pay that he has accumulated.

Why they filed claims against Metrolinx

In December 2021, the Metrolinx employees filed wrongful dismissal claims in Ontario against the transit agency after being placed on unpaid leaves of absence. They were removed from their jobs by their employer after failing to fully vaccinate against COVID-19; the company’s deadline was set for November 1, 2021. Bogias, Rozanski and their colleagues had been working remotely from home since the start of the pandemic.

Unless there is a government mandate that specifically requires that employees be vaccinated against COVID-19 (which hasn’t happened for provincially regulated transit workers), it is illegal for an employer to change fundamental aspects (pay, duties, work location) of an employee’s job, without their permission. This includes making vaccination a mandatory term of employment for someone whose contract does not require it. Additionally, an employer can’t put someone on an unpaid leave of absence for failing to comply with the mandate. An employee can treat the change as a termination of their employment, and claim full severance pay.

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An employer does have the option of firing an employee who refuses to get vaccinated. But the termination would not be “for cause” – without severance and Employment Insurance – unless the company was enforcing a government vaccine mandate. Therefore the firing would be considered without cause, meaning that the employee would be owed as much as 24 months’ pay, depending on various factors.

“Metrolinx had been allowing people to work from home continuously since March 2020, and all of a sudden, my clients are no longer allowed to work at all because they did not agree to a vaccine policy that was never, ever required of them in their contracts,” said Fainzilberg.

“That is… a very clear breach of (the employment) contract.”

Arbitrators, epidemiologists question mandates for remote workers

The Star’s Jacob Lorinc writes that a recent labour ruling on a dispute between the Power Workers’ Union and the Electrical Safety Authority calls into question vaccine mandates for employees working remotely. The arbitrator said the province’s Employment Standards Act could easily have made exceptions for remote workers; a “reasonable, less intrusive alternative, such as… a testing policy” would have been sufficient,” wrote the arbitrator.

Epidemiologist Colin Furness, with the University of Toronto, told Lorinc that he doesn’t think that vaccination should be a requirement for workers that aren’t first responders.

“There’s a middle ground where we make vaccine mandates permanent, but also nun-punitive, where you need to accommodate workers who can work remotely,” he said.

Toxic work environment

Metrolinx told the Star that suspended workers will be allowed to return to their full time positions, once they are vaccinated.

However Fainzilberg told the Star that it’s not “realistic to expect these people to go back to this environment.”

“It’s a pretty toxic environment for them,” he said, referencing the humiliation and demoralization his clients have experienced, especially for those who have given Metrolinx years of loyal employment.

“To be put back in that workplace is only going to do more damage.”

Employment lawyers for wrongful dismissals

The employment lawyers at Samfiru Tumarkin LLP have decades of experience securing compensation for tens of thousands of non-unionized employees who have lost their job.

As Canada’s largest employee-side law firm, we have helped countless individuals navigate terminations in the years leading up to the pandemic, as a result of the impact of COVID-19, and in response to the latest turmoil afflicting the global economy. We are the employment law of choice for individuals working in Ontario, Alberta and British Columbia.

Contact our team today to get sound advice and proven results for your employment law issues.