The Union representing the majority of the City of Hamilton’s employees won a procedural motion in front of an arbitrator and will get an expedited hearing to answer the question if the City of Hamilton can fire employees who refuse to get vaccinated against COVID.

CUPE Local 5167, which represents approximately 3850 City workers, says the City cannot fire the approximately 154 employees represented by the Union who are either not vaccinated against COVID or refusing to disclose their vaccination status.

Of these 154 employees, “ten of those employees have refused to declare their vaccination status and/or undergo Rapid Antigen Testing and had been placed on an unpaid leave back in 2021 as a result.”

The Union’s collective agreement states the City “cannot force an Employee to be immunized or to take the prophylactic alternative without their consent. It is further understood that where such immunization (or the prophylactic alternative to immunization) is required in order for the Employee to attend work and the Employee refuses the immunization or its substitute, they may be placed on unpaid leave with no loss of seniority. In this event the Employer agrees to take reasonable steps to accommodate workers through alternate work arrangements.” (Article 10.3(g) of the Collective Agreement.)

In an Arbitration decision released Monday, Sole Arbitrator Jesse M. Nyman ruled that a separate hearing will be conducted to decide the interpretation of Article 10.3(g) to determine if the City of Hamilton’s plan to fire employees violates the Collective Agreement.

CUPE argued that the issue of interpreting Article 10.3(g) is “sufficiently dispositive” of the overall grievances filed in response to Hamilton City Council’s COVID vaccination policy that it warrants immediate adjudication.

The City of Hamilton argued against splitting this issue from the overall grievances.

City Council voted last week to extend the deadline for employees to become vaccinated against COVID until September 30. The City had planned to terminate non-vaccinated employees on June 1st.

In April, the City’s Senior Management Team recommended Council end the mandatory vaccination requirement. Council divided in a 6-6 vote during their April 27. A tie vote maintains the status quo and the policy remained in effect.

Arbitrator Nyman ruled the City has until June 20 to provide “particulars of any evidence it intends to call” regarding Article 10.3(g).

Hearing dates will be scheduled during upcoming conference calls between lawyers for the Union and the City.

Both the City and Union expected the hearing and ruling to be expedited.