In Paul v. Sensient Colors, 2025 ONSC 3127 Justice De Sa had a situation of a 10 year Sales Rep who, contrary to the Employer Policy, refused to provide proof of her COVID status. She did not claim any human rights exemption. The Policy clearly stated that refusal to follow the policy would result in dismissal for just cause, which is what the Employer did.
Having concluded that the Employer’s mandatory vaccination policy was reasonable, the Court went on to say this :
[68] When an employer terminates with cause for non-compliance with a vaccination policy, there must be a sufficient connection between the employee’s job responsibilities and the requirement to be vaccinated so as to justify imposing the ultimate penalty of ending the employment relationship.
[69] Clearly, in certain cases, a refusal to vaccinate may sufficiently undermine an employee’s ability to carry out their duties so as to justify dismissal with cause. However, this will not be true in every case.
[70] In this case, I am not satisfied that the termination of Ms. Paul was a necessary or proportionate response to her refusal to disclose her vaccination status.
The Judge then went on to consider the following factors in determining that discharge for just cause was a disproportionate response to the Plaintiff’s refusal to comply with the Policy.
- 90% of her work time since the pandemic started was from home.
- During the pandemic her performance exceeded the job requirements.
- None of her 10 top clients required her to be vaccinated to do an on site visit.
- Prior to her termination and during the pandemic she continued to do on site visits with clients in Ontario with no problems.
- None of her clients outside Ontario asked her to do an on site visit.
- She had no US based clients.
- She complied with all other safety requirements like masking.
- She was an overall satisfactory employee.
- Even though her job required that she attend certain meetings in the USA, the Employer could have arranged much of the training in other ways.
If discharge for just cause was too extreme, what should the Employer have done ?
[78] A more proportionate response here may have been to review and revise Ms. Paul’s customer portfolio to the extent required, temporarily suspend her from customer-facing sales or even possibly put her on a leave of absence
She was awarded 12 months notice.
The Judge also noted that she was the only employee who refused to comply with the Policy.
Comments :
It seems that the farther we get away from the COVID era, the more lenient the Courts are getting in response to these types of cases.
Even though this Employee did not rely any human rights exemption, the Judge seemed to require the Employer to accommodate the Employee by requiring them to change her job requirements so as to meet her desire not to be vaccinated.
However, the Judge also left open the option that they could have simply suspended her for the duration of the pandemic. This is consistent with a number of other COVID cases. I am not aware of any case where a suspension or a leave of absence in a COVID refusal case was held to be improper.
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