Unvaccinated Metrolinx employees file $2.09 million in claims over workplace vaccine policy

At least a dozen former Metrolinx employees, including long-time staff and senior managers, are suing their ex-employer for a combined $2.09 million after being suspended without pay for refusing to get vaccinated against COVID-19.

In separate lawsuits filed last December, the former employees say they were treated with callous disregard" when Metrolinx placed them on indefinite leaves of absence last November because they chose not to get two doses of an authorized COVID-19 vaccine by the Nov. 1 deadline Metrolinx prescribed.

Those suspensions were unnecessary" and a significant breach of contract," in part because the employees were all working from home at the time of their suspensions and did not pose a threat to workplace safety, the workers' lawyers argue in legal documents viewed by the Star.

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 Stan Fainzilberg, a lawyer with Samfiru Tumarkin LLP, who is representing 10 of the former Metrolinx employees.

That is, in our view, a very clear breach of contract."

In interviews with the Star, former employees Michael Bogias and Peter Rozanski argued they were effectively fired rather than suspended and are therefore entitled to severance pay and accrued vacation pay.

Bogias, a 10-year employee who worked as a senior manager at the Union Station Rail Corridor and is now seeking $196,448 in damages for wrongful dismissal, said he had worked almost exclusively from home without issue" since the outset of the pandemic and was completely capable of attending" to all of his work remotely.

Rozanski, a five-year employee who oversaw operations and commercial management for Metrolinx, argued that Crown corporation made no accommodations, nor were any alternative solutions meaningfully considered," when he was suspended in November.

Rozanski, who is seeking $115,846.66 in damages for wrongful dismissal, said Metrolinx also declined to compensate him for six weeks' worth of vacation pay he had accumulated before his suspension.

This all feels very punitive to us. If this is just about worker safety, why withhold my vacation pay?" Rozanski said.

Metrolinx denies that any of its employees were wrongfully dismissed. In a statement of defence viewed by the Star, the corporation argued that all these employees are still technically employed with Metrolinx and were suspended based on policies designed to protect workers from the spread of COVID-19.

Lawyers for Metrolinx pointed to specific wording in Ontario's Occupational Health and Safety Act, which says that employers are required to take every precaution reasonable in the circumstances for the protection of a worker."

The corporation also pointed to a directive it received from Ontario's Ministry of Transportation last August that told Metrolinx to implement mandatory vaccination policies that requires designated Metrolinx staff to be fully vaccinated."

By implementing and enforcing the vaccination policy, Metrolinx did not alter a term of the plaintiff's employment, but applied an existing term of his employment - that he would comply with policies instituted by Metrolinx; particularly, but not limited to, those created pursuant to ... directives of the Ontario government," reads the statement of defence.

Metrolinx declined to comment further on the matter.

The lawsuits are among a wave of wrongful dismissal claims that workers have filed against their bosses since businesses and government agencies introduced vaccination requirements for their staff last summer.

Although nearly a year has passed since those mandates were introduced, lengthy court backlogs have kept these cases from having their day in court.

Lawyers for Metrolinx's ex-employees estimate that, should these cases go to a trial, the results won't be known until 2023 at the earliest.

In the meantime, a handful of labour disputes between unions and employers can offer some indication of how judges and arbitrators might rule on vaccine mandates.

Between November and January, several major Canadian unions filed grievances on behalf of laid-off or suspended and unvaccinated employees.

For the most part, those disputes have gone in favour of the employer. In labour arbitration involving the TTC, Maple Leafs Sports & Entertainment and Chartwell Retirement Residences, mediators consistently affirmed the employers' right to protect workers from COVID-19 with mandatory vaccination policies.

In a select few instances, though, arbitrators have ruled that certain vaccination policies were unreasonable or overreaching.

In a dispute from November between the Power Workers' Union and the Electrical Safety Authority (also an Ontario Crown agency), a labour arbitrator ruled that the ESA could easily have made an exception for the remote workers they suspended, given there was no specific problem or significant risk related to an outbreak."

In those circumstances, a reasonable, less intrusive alternative, such as the (employer)'s voluntary vaccination disclosure and testing policy" would have been sufficient, the arbitrator wrote.

Some epidemiologists, too, have questioned the necessity of vaccine mandates for remote workers. Colin Furness, an infection control epidemiologist at the University of Toronto, says he doesn't think workers' jobs should depend on being vaccinated unless they're first responders."

There's a middle ground where we make vaccine mandates permanent but also nonpunitive, where you need to accommodate workers who can work remotely."

But Metrolinx argues it should have discretion over where it wants its employees to work, and that it should not have to choose between leaving workers at home or risking the health of its staff by bringing unvaccinated workers back to the office.

Metrolinx is better able to accomplish its mandates when its employees are together in the workplace with their close colleagues," lawyers for the corporation said in a statement of defence.

Roughly 95 per cent of Metrolinx staff are vaccinated, the corporation told the Star.

When the vaccine policy went into effect last November, Metrolinx initially placed 150 non-compliant employees on unpaid leaves of absence. Since then, that figure has dropped to 66.

Metrolinx has also said that any suspended workers who get vaccinated will be allowed to return to work full time.

But the employees suing Metrolinx say their relationship with the corporation has been damaged irreparably."

In Bogias' statement of claim, his lawyers say the suspension humiliated and demoralized (Bogias) ... especially considering his almost 10 years of loyal employment."

Fainzilberg, representing Bogias and Rozanski, says he does not think Metrolinx can reasonably expect the employees to return to work after the past seven months.

From a general humanistic perspective, I don't think it's realistic to expect these people to go back to this environment. It's a pretty toxic environment for them, and to be put back in that workplace is only going to do more damage," Fainzilberg said.

Jacob Lorinc is a Toronto-based reporter covering business for the Star. Reach him via email: jlorinc@thestar.ca