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Labour board tosses complaint union didn’t stand up for unvaccinated City of Burnaby employee

CUPE Local 23 arrived at an 'informed decision' not to take ex-City of Burnaby employee Carlo Sferra's grievance to arbitration because it was unlikely to succeed, according to the Labour Relations Board.

The B.C. Labour Relations Board has dismissed the complaint of a former City of Burnaby employee fired for refusing to be vaccinated against COVID-19 or tested for the virus according to the city’s policy.

When the city implemented its COVID-19 vaccination policy on Nov. 1, 2021, it gave employees until Nov. 29, 2021 to get vaccinated.

Any employee who wasn't vaccinated was required to get a rapid antigen test before coming to work.

Carlo Sferra refused to do either and was first put on a six-month unpaid leave and then fired on Jan. 10, 2022, according to a recent Labour Relations Board ruling.

Sferra asked the board to order his grievance against the city to proceed to arbitration.

He said his union, CUPE Local 23, had gotten "nowhere" during a drawn-out grievance process and breached its duty to represent him fairly.

"In my opinion, the union was not out for my best interest throughout the entire process," Sferra told the board.

Sferra said the union caused delays filling out the grievance form, filed a grievance form without his signature and without him having seen it, and ultimately refused to pursue a monetary settlement agreement he thought was fair or take his case to arbitration.

The union, meanwhile, said it took "reasonable measures" in Sferra's case.

It said Sferra put forward arguments against the city's policy – including disputing the scientific necessity of vaccines, masking, social distancing and COVID testing, COVID death rates, and the city's legal authority to require vaccination or testing – but the union told him it would not use those arguments because they had already been rejected in other arbitration decisions.

"Many arbitrators have rejected the arguments you are suggesting the union should make," the union told Sferra in an Aug. 31, 2022 letter, according to the ruling.

The union also defended its decision not to take Sferra's case to arbitration, saying it had done a "fulsome assessment" of his grievance, including the information and arguments Sferra provided, before concluding it was "unlikely to succeed."

"The union put significant effort and resources into ensuring it fully understood the applicant's perspective, putting forward the strongest possible case in the grievance procedure and reaching a reasoned decision not to advance the grievance to arbitration," the union said.

It argued Sferra's application to the labour relations board should be dismissed.

The city, which was also named in the case, also argued Sferra's application should be dismissed because his grievance had "no reasonable prospect of succeeding" even if the union did end up taking it to arbitration.

The city said its COVID policy was "reasonable in the circumstances" and provided a reasonable alternative to vaccination – testing.

Sferra's refusal to comply with the policy was "unreasonable," the city said, and it had a right to fire him for it.

Labour Relations Board vice-chair David Duncan ultimately found in favour of the union.

"I am satisfied that, taken as a whole, the union's representation of the applicant with respect to the grievance, was pro-active, appropriate, and other than arbitrary," he said.

Duncan said the facts presented in the case showed the union was aware of the relevant information and arrived at an "informed decision" not to take Sferra's grievance to arbitration.

Duncan noted unions are not required under the Labour Relations Code to pursue grievances according to the grievors' wishes or expectations.

Follow Cornelia Naylor on X/Twitter @CorNaylor
Email [email protected]