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An elevator repair worker whose union went to bat for him after he was sent home from a job site for not being vaccinated has lost a legal challenge.

According to a recently published April 21 Labour Arbitration Award decision, the International Union of Elevator Constructors, Local 82, argued Kelowna resident Dave Smart should never have been sent home by elevator repair company Kone because he wasn't vaccinated.

The decision says that in March 2022, Kone needed two elevator repair workers for the Kelowna area and asked the Union to provide them.

However, when Smart arrived at the unnamed job site, Kone refused to hire him because he was unvaccinated.

The Union took the company to the labour board arguing the company's refusal to employ Smart based on his vaccination status was unreasonable.

However, the Arbitrator didn't agree.

"I acknowledge Smart’s genuine desire to work and provide for his family... I also accept that he was faced with a difficult choice. He could get vaccinated and work or he could remain unvaccinated and not work," the Arbitrator says in the decision. "However, I am not persuaded that Smart’s rights and interests went so far so to require the Employer to find alternate employment for him where he did not meet a legitimate job requirement for the position to which he was dispatched."

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The decision says the elevator repair company has multiple contracts with buildings around the Kelowna area, including hospitals, long-term care facilities and private seniors care residences. The company also services Fortis, Telus, BC Hydro and various government buildings and school districts.

Many of the companies based in these buildings had mandatory vaccination policies, so if they had an issue with an elevator the repair contractor who showed up was also required to be vaccinated.

The decision says the company had to juggle its staff, as many weren't vaccinated, while making sure it had enough vaccinated workers if hospitals and care homes required its immediate service.

The general manager testified that he wanted everyone to work and had to keep track of who was, and who wasn't, vaccinated so he could assign work accordingly.

"(The manager) said he was constantly thinking about the burden he was putting on vaccinated employees with the redesigned work assignments, as they were travelling larger distances, often in dangerous road conditions, in order to get the work done. He was also trying to manage issues between employees, with vaccinated mechanics calling him and saying they were being punished while the unvaccinated employees were being coddled," the decision reads.

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To add to this, in the winter of 2021-2022 the Omicron variant spike saw the number of workers off sick double, and the manager was struggling to find available vaccinated mechanics to respond to clients.

The Union argued the company's refusal to hire Smart based on his vaccination status breached his fundamental right to privacy and autonomy over his medical choices.

However, the Arbitrator didn't buy it.

The Arbitrator said the company was required to adhere to its clients' policies that workers on site must be vaccinated.

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The decision goes through lengthy labour law and a union's rights to fight for its workers, but ultimately the Arbitrator dismisses all of its arguments and confirms the company had every right to send the anti-vax elevator repairman home.

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