Labour board tosses fired education worker’s COVID-testing claim

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The Manitoba Labour Board has dismissed an educational assistant’s claim that her union failed to fairly represent her by not challenging a school division’s government-mandated requirement to collect proof of COVID-19 vaccination or regular rapid test results from employees.

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The Manitoba Labour Board has dismissed an educational assistant’s claim that her union failed to fairly represent her by not challenging a school division’s government-mandated requirement to collect proof of COVID-19 vaccination or regular rapid test results from employees.

In a recent ruling, board chairperson Colin Robinson threw out a case brought forward by a woman who was fired from her job as an EA at Winnipeg’s Chief Peguis Middle School last fall, after repeatedly refusing to comply with a public-health order and showing up to work in defiance of it.

Robinson concluded the River East Transcona Educational Assistant Association provided “capable and caring representation” and professional advice to the EA, who is referred to as “R.Z.” throughout a 20-page ruling dated April 21.

“Actions have consequences…. The applicant insisted on acting in a manner which was disconcertingly unreasonable and uncooperative. She was the author of her own misfortune,” he wrote.

On Dec. 8, R.Z. filed an application to seek remedy for an alleged unfair labour practice contrary to a bargaining agent’s duty of fair representation. In her vague complaint, she suggested her medical information is private and she “did not consent to forced unpaid leave.”

Both the RETEAA and employer, the River East Transcona School Division, requested it be dismissed without a hearing.

The labour board deemed a hearing unnecessary and determined the applicant’s arguments were unfounded, based on materials submitted by all parties.

“In effect, (the ruling) just says that unions don’t have an obligation to file or take pointless grievances to arbitration around COVID-related measures,” said David Camfield, an associate professor of labour studies at the University of Manitoba.

Camfield noted this case is an example of the labour board dismissing an allegation that appears to be informed by “fringe views.”

For the better part of the 2021-22 academic year, education workers were subject to a COVID-19 order requiring they either be fully immunized or undergo frequent testing using kits provided by their employer at no cost in order to continue working.

On Sept. 27, more than one month after the province announced its intention to introduce the order to protect vulnerable populations, R.Z. wrote to her human resources director indicating she felt uncomfortable sharing personal health information and was not asked for consent.

In response, the director said providing information was ultimately her choice, but if she failed to do so, she would not be allowed to be on school property.

The EA failed to meet numerous fall deadlines regarding the policy, including extensions made for her in order to review the requirement. In response, the division issued continuous warnings, and organized meetings on the subject throughout October and November, two of which the applicant refused to attend.

Despite being put on unpaid leave on the first official day of the order, R.Z. showed up to work on Oct. 18.

Correspondence between the employee and her union president indicates the applicant wanted proof that the order was “sworn on a Bible” and sent a “notice of liability,” outlining concerns.

The union leader, known as “C.S.” in the decision, told the EA she would seek legal counsel and later informed R.Z. of an expert perspective that it would be extremely unlikely that her grievance would be successful. The applicant did not respond to C.S.’s offers to discuss the situation.

“Employees who are not vaccinated have a reasonable alternative option — providing rapid testing results. We have been advised that such tests are unlikely to be considered to constitute genetic testing,” C.S. wrote in a followup email on Nov. 12.

On Nov. 15, after R.Z. wrote to a senior division administrator to accuse him of engaging in “despotic communication,” and threatened that he “may be held personally accountable for any wrongdoings against me,” she was dismissed from her job.

“Your continued refusal to comply amounts to wilful disobedience, dereliction of duty, and insubordination as you continue to refuse to follow the lawful direction of your principal and the superintendent,” states the notice of termination, which outlines previous disciplinary measures including an Oct. 15 verbal warning, Oct. 26 written warning and Nov. 5 suspension.

The applicant sent a “notice of agreement” to her union and employer in separate emails on Dec. 6, claiming she was granted a testing exemption and threatened to impose a fee schedule in the event her demands were not met by 2022.

The public-health order, which ended in March, did not permit any exemptions.

Business professor Maureen Kilgour said unions have always had to balance the interests of diverse memberships, whether it be weighing the desires of new employees versus older staff members or differing demands from single workers compared to those with families.

The pandemic, however, “has really brought that to the fore,” and this case follows a national pattern of recent rulings that uphold testing policies, said Kilgour, who researches at union-management relations at the University of Winnipeg.

In her view, unions have come out on the right side of history in acknowledging that COVID-19 is serious, so steps must be taken to address workplace health and safety.

“It’s been a tug or tension, between ‘we don’t want the employer to enforce things on our members,’ but unions are also supposed to be believing in science, democracy and have a bigger public interest,” Kilgour added.

Given many testing mandates have now been lifted, the researcher said she anticipates workers’ compensation related to long COVID to be “the next frontier of dispute.”

maggie.macintosh@freepress.mb.ca

Twitter: @macintoshmaggie

Maggie Macintosh

Maggie Macintosh
Reporter

Maggie Macintosh reports on education for the Winnipeg Free Press. Funding for the Free Press education reporter comes from the Government of Canada through the Local Journalism Initiative.

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