Teamsters Local 213, the union for Lower Mainland hourly employees in Richmond, Coquitlam, and Chilliwack opposed the policy, claiming that it is “an unreasonable exercise of management rights.”
The union argued that the policy failed to achieve its purpose as there were few infections in Richmond and Coquitlam prior to the spike in January 2022, and that Covid-19 continued to spread even after unvaccinated employees were removed from the workplace.
It also said that the policy violated the fundamental right for individuals to choose how to deal with their own bodily integrity issues.
The union’s witness, Alec Kaloesnichenko, is an employee who worked in a laboratory at the Richmond Production Plant.
Kaloesnichenko caught Covid-19 in December 2020 and has been off work since Jan. 28, 2022 as he did not get vaccinated.
“I understand data. After I got COVID I decided not to get vaccinated because immunity after you get it is just as strong or stronger,” he testified, explaining that he had conducted his own research.
During the hearing, Kaloesnichenko was asked if he disagreed with Provincial Health Officer, Dr. Bonnie Henry, about the efficacy and safety of vaccines.
“She might have got it right initially, but Bill Gates has stated numerous times that the vaccine is not effective,” he said.
In fact, according to Reuter's fact-check line in 2021, Gates did not say that Covid-19 vaccines were ineffective. Instead, he said preparations for the next pandemic will likely focus on things that are currently unavailable, such as vaccines that stop virus transmission.
Coca Cola’s nation-wide policy was enacted on Oct. 26, 2021, which required all employees to submit documentation to prove they had received both doses of the Covid-19 vaccine, unless an exception was made. New hires were also required to receive both doses before starting work.
According to the policy, violations could result in disciplinary actions such as suspension without pay or termination. Accommodations could also be granted for those who could not get vaccinated based on protected human rights. The policy was reviewed earlier this year, but no substantial changes were made.
At the time of the hearing, no terminations or suspensions were made, and no human rights exemptions were granted, according to Jose Alonso, Coca Cola’s director of labour relations for Canada.
The purpose of the policy was “to maximize COVID-19 vaccination rates among Coke Canada employees as one of the critical control measures against the hazard of COVID-19,” according to Coca Cola.
Coca Cola’s justification for the policy
Coca Cola told the arbitrator that its mandatory vaccine policy is “consistent with its interest in ensuring the health and safety of all its workers,” and it had repeatedly notified employees about the policy and potential consequences for breaching it.
In particular, Coca Cola quoted Provincial Health Officer Dr. Bonnie Henry, who said vaccination was, “the single most important preventative measure a member of a community can take to protect themselves and other members of the community from infection, severe illness and possible death from COVID-19.”
It argued that the policy is reasonable because termination is not the automatic result of failing to get vaccinated. As well, Coca Cola argued that the policy offers employees a choice to either get vaccinated or be subject to the policy’s consequences.
In his analysis, arbitrator Randall J. Noonan said that Kaloesnichenko’s evidence about the efficacy of Covid-19 vaccines was “of little or no value.”
“We are collectively, in my view, at a time of scientific uncertainty, at least from a legal perspective,” said Noonan.
He noted that neither side had produced expert witnesses to testify on the efficacy of vaccination and testing or introduce and interpret the scientific articles that were submitted as evidence.
“Where there is no better scientific evidence properly before an employer when a policy is enacted or before an arbitration panel, the best evidence is the statements and orders made by proper authorities such as the Provincial Health Officer,” he said.
“I do not think it is appropriate to determine, based on anecdotal evidence, impressions, or arbitral notice that our understanding of COVID- 19 has shifted, that an employer policy that still requires mandatory vaccination never was or no longer is reasonable.”
Noonan ultimately concluded that Coca Cola’s mandatory Covid-19 vaccination is reasonable and dismissed the union’s grievance.
He also said that he did not think it was necessary to remove the provision for potential dismissal for violation of the policy, and clarified that just because the provision exists does not mean it would automatically lead to or justify a dismissal.