Four former Whistler Blackcomb employees have filed civil suit against the company after they claim they were wrongfully terminated from their positions without notice for failing to comply with its COVID-19 vaccine policy.
Sebastien Fremont, 47, a Whistler Blackcomb employee of 25 years who worked as the company’s senior manager of race services and recreation; Kevin Phelps, 49, a Whistler Blackcomb employee of 25 years who worked as a full-time millwright in the snowmaking department; Christian Staehli, 48, a Whistler Blackcomb employee of 29 years who worked as a fleet maintenance supervisor; and Robert Williams, 54, a Whistler Blackcomb employee of 14 years who worked as an electrician, all filed separate suits in the B.C. Supreme Court on Feb. 16. Each is represented by the same lawyer, and the suits are nearly identical in their legal basis and relief sought.
According to the court filings, the employees were allegedly terminated without notice on Nov. 19, 2021 for failing to comply with Whistler Blackcomb’s new vaccination policy, which they claim was not a precondition of their employment.
“As the [employee’s] continued employment was not contingent upon a government mandate, the Defendant was not legally entitled to terminate his employment without notice. It could only terminate him by providing him with the correct amount of notice or pay in lieu of same,” each suit alleged.
The employees allege Whistler Blackcomb did not provide just cause for termination nor a termination letter. Ending their employment without providing reasonable notice and without just cause “constitutes a breach of the Plaintiff’s employment contract,” the suits said.
The plaintiffs say they have all suffered and continue to suffer mental distress as a result of the company’s failure to provide notice of termination. All are seeking damages related to the loss of employment and job benefits such as equipment allowances and ski passes, special damages for out-of-pocket expenses and legal costs, as well as punitive and aggravated damages.
B.C. employment law is unclear when it comes to employers mandating COVID-19 vaccines for their staff. Workers in the health-care sector are required by the provincial government to be fully vaccinated, but for sectors where no public health order is in place, “vaccination policies and how they are appropriately implemented in the workplace is new legal territory,” says WorkSafeBC on its website. “These types of policies raise some potential employment law issues. Every workplace is different, so individual employers should seek legal advice when considering whether to develop a mandatory vaccination policy.”
Local lawyer weighs in
In an email, lawyer Greg Diamond from Whistler firm Double Diamond Law said, “it looks like these employees were terminated with cause because they refused to be vaccinated. If that is correct, then the success of the claim will likely turn on whether the vaccine requirement was mandated by government, and/or was reasonable and necessary, and/or how fundamental vaccine status was to the performance of their job.”
Employers are entitled to make rules with respect to health and safety in order to protect their staff, clients and general public, even if, say, WorkSafeBC directives do not specifically apply. “The question would be whether they are reasonable and necessary,” explained Diamond.
But, if an employer can’t justify to the court that vaccination status strikes at the heart of the employment relationship, then it could be deemed a wrongful dismissal, Diamond added.
“Whether the employee can be accommodated (e.g. offered alternative ways to perform their duties that do not put others at risk of transmission), will be a critical feature of the analysis,” he said.
Employers in B.C. are also legally allowed to terminate employees at any time, without reason, so long as they offer reasonable notice, or severance pay in lieu. However, what is considered “reasonable” in common law hinges on a number of factors, including an employee’s position, age, salary, years of service, skill set, and other criteria related to the nature of their work.
“Ultimately, the courts are trying to decide what an appropriate amount of time is for this worker to find a new job,” Diamond noted. “To illustrate, older, long-term, senior employees get more notice/severance.”
Numerous public bodies in B.C. have instituted vaccine requirements for their workers, including the Resort Municipality of Whistler (RMOW), which set a March 1 deadline for municipal staff, contractors and volunteers to submit proof they’ve received at least two doses of a COVID-19 vaccine or be placed on unpaid leave. The RMOW confirmed today that 12 staff in all have been placed on unpaid leave. The requirement applies to all of the RMOW’s 619 employees, in addition to its roster of contractors and volunteers.
Vaccine mandates may do more harm than good, study finds
But prevailing opinion on vaccine mandates appears to be shifting in B.C. in light of high vaccination rates and the less-severe nature of the Omicron variant.
As of March 1, the University of British Columbia no longer requires students to declare their vaccine status, nor will unvaccinated, partially vaccinated or undeclared students be subject to rapid antigen testing. The school’s Senate adopted the policy in December in the face of the surging Omicron variant, but with a school-wide vaccination rate over 97 per cent, coupled with advice from Vancouver Coastal Health (VCH), it was deemed the strategy was no longer necessary. Under that policy, students who failed to declare their vaccination status or attend weekly rapid testing appointments faced the risk of being placed on academic hold. If students still did not comply, they would be deregistered.
“Universities are low-risk settings for COVID-19 and, as incidence has declined and there is now evidence of the endemic nature of the virus, they should have minimal restrictions in place at this stage of the pandemic,” a Feb. 16 letter from VCH to UBC president and vice-chancellor Santa Ono read. “Based on the totality of public health evidence, it’s now appropriate to discontinue the testing program for unvaccinated students, staff and faculty; and further, we urge you not [to] proceed with plans to de-register students who have not declared their vaccination status. Such measures may result in profound negative harms on their future health and wellbeing, by impacting future educational and career opportunities, and their mental health.”
The VCH letter also references a new study on the Social Science Research Network online repository that looks at “the harms of mandatory vaccine policies,” particularly in the context of the less-severe Omicron variant.
“The authors conclude that such policies ‘may lead to detrimental long-term impacts on uptake of future public health measures, including COVID-19 vaccines themselves as well as routine immunizations,’” the letter stated.
“‘Restricting people’s access to work, education, public transport, and social life based on COVID-19 vaccination status impinges on human rights, promotes stigma and social polarization, and adversely affects health and wellbeing.’”
A representative for Whistler Blackcomb declined comment on the civil suits with the cases ongoing. The lawyer representing the four employees, Dan Balkaran of Vancouver firm Samfiru Tumarkin, did not respond to a request for comment by press time.
Whistler Blackcomb has 21 days to respond to the civil claims if the company was served notice in Canada, or 35 days if it was served in the U.S.
None of the above claims have been proven in court.
This story has been updated since publication to reflect the updated total of RMOW employees now on unpaid leave.
