The Tribunal held that the employees remained free to choose whether or not taking the vaccine, the only consequence of that choice being relevant from an economic point of view.

In April 2020, in light of the significant work commitment of healthcare employees during the pandemic, Quebec passed two ministerial decrees which provided for a 4% bonus applicable to the salaries of such employees and a “premium staircase” which consisted in a lump-sum payment calculated on the basis of the number of hours such employees had worked during the week and that could go up to 1,000 dollars per month. Such provisions applied also to individuals who, while working in medical settings, carried out administrative functions.

However, by a further ministerial decree of October 2021, it was established that employees who qualified as persons not adequately protected against the virus – these persons being those who were not vaccinated and had not contracted COVID-19 in the last six months – could not benefit from the above bonus and sums. This provision applied even though, under the applicable legislation, healthcare employees could decide to either take the vaccine or perform three COVID-19 screening tests per week.

Acting on behalf of a number of unvaccinated employees who had been denied such benefits, the Canadian Union of Public Employees (CUPE) filed grievances before an Arbitral Tribunal in Quebec – whose awards are binding and enforceable – in order to demonstrate that they should receive the bonuses. The Union alleged that the ministerial order denying the benefits was in breach of the freedom of opinion, thoughts, belief and expression protected by the Canadian and Quebec Fundamental Charters. It argued that, by deciding to perform the three screening tests instead of taking the vaccine, the employees had exercised an expressive activity and that the challenged measure constituted an exercise of coercive constraint which had the effect of restricting their freedom. The Union also held that by refusing to take the vaccine the employees had expressed their opinion on the success of the vaccine or its necessity. Furthermore, in the Union’s view, the challenged order was punitive in nature and constituted an unjustified and arbitrary breach of the unvaccinated employees’ right to life, liberty and security; under such right, the individual must have sufficient personal autonomy to live his/her own life and make decisions that are of fundamental importance to him/her.

By Arbitral Award of 30 August 2023, the Arbitral Tribunal of Quebec dismissed the suit brought by the Union.

First, the Tribunal held that the employees’ freedom of expression had not been breached since the challenged order did not prevent them from expressing their opinion on the COVID-19 vaccine; it only entailed a loss of the right to receive certain benefits.

Second, the Tribunal found that it had not been proven that the contested measure had a real coercive effect on the employee, who had remained free to maintain their beliefs and opinions with regards to vaccination.

Third, as to the employees’ complaint relating to the breach of their right to life, liberty and security, the Tribunal noted that the challenged statute could not be qualified as a coercion since the employees remained free to choose whether or not taking the vaccine, the only consequence of that choice being relevant from an economic point of view; however, the right to liberty and personal integrity do not protect economic rights, the Tribunal hold.

Finally, the Tribunal held that, despite the challenged order having significant financial consequences for the employees, it had not been proven that its objective was to punish them or that it was arbitrary. “If these measures appear very questionable from the point of view of labor law, it must be recognized that by encouraging health care workers to be vaccinated they contribute to protecting the health of the population”, the Tribunal highlighted. In light of the above, “it is impossible to find that the challenged measures are arbitrary, that is to say that there is no rational link between the alleged infringement of the applicants’ rights and the pursuit of a public interest”, the Tribunal concluded.

Reference: Syndicat canadien de la Fonction Publique v. CHU de Québec – Université Laval, Tribunal d’Arbitrage of Quebec, 30 August 2023.

Full text of the decision available at fr