Former WestJet employee awarded $65K for wrongful dismissal over COVID-19 vaccination

A Calgary judge has ruled in favour of a former WestJet employee who refused to get a COVID-19 vaccination on religious grounds.

An Alberta court has ruled in favour of a former WestJet employee who claimed she was discriminated against when the company terminated her over her refusal to receive a COVID-19 vaccine because of her religious beliefs.

Duong Yee was hired by the company in 2010 and in 2021, when the Government of Canada mandated COVID-19 vaccinations for all air transportation companies, she refused to comply, the court said.

Yee filed a vaccine accommodation request form with the company on Sept. 20, 2021, where she said her religious beliefs made her exempt from the policy.

WestJet denied Yee’s request on Oct. 4, 2021, and placed her on unpaid leave before terminating her employment two months later.

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A decision from the Alberta Court of Justice, filed May 13, found that the company did not properly consider Yee’s religious beliefs, nor did it consider alternative arrangements for her employment given the circumstances.

While Justice A.P. Argento found WestJet’s vaccination policy, mandated by the federal government, was reasonable and enforceable, he said the company “did not properly consider her religious accommodation request.”

“The plaintiff’s responses to the questions in the accommodation request form and her pastor’s letter clearly demonstrated a subjective, religious objection to vaccination,” Argento wrote.

“There was no evidence at trial that the defendant questioned the sincerity or honesty of the plaintiff’s religious beliefs at any time.”

‘Jesus is my healer’

According to an excerpt from the accommodation form, submitted at trial, Yee said she was exempt from vaccination “based on sincerely held beliefs as a bible believing Christian, the vaccine is betrayal of faith to my healer, Lord and Saviour Jesus Christ.”

She went on to say she had concerns about the COVID-19 vaccine, including but not limited to a lack of evidence of long-term safety.

“Jesus is my healer, I do not – cannot – rely on the use of vaccinations or medicines created artificially in order to prevent sickness,” Yee wrote on the form, which she submitted along with a letter from her pastor.

“Jesus speaks of seeking out a doctor when one is sick, not well. I have no need of a vaccine in order to maintain my health.”

Argento, in his reasons, said WestJet’s response to Yee stated doubt about religion being the reason for her exemption but did not explain why that was the case.

Furthermore, another WestJet employee, Lauren Sawchyn, who testified a trial, “was unable to clearly articulate in evidence what those other grounds were,” Argento said.

“The defendant could have requested further information to address its doubts, but chose not to even though its decision would ultimately lead to termination for cause,” he said.

“The defendant has the burden to prove just cause based on a breach of the vaccination policy. As the defendant failed to properly consider the plaintiff’s request for a religious exemption under the vaccination policy, the defendant cannot establish that it had just cause to terminate her employment for subsequently failing to comply with the policy.”

Employee remained ‘professional’ until the end

Argento also found WestJet did not consider any accommodations, including remote work, that could have allowed Yee to continue working for her employer.

He also said Yee remained professional until the point she was placed on unpaid leave on Nov. 1, 2021.

“The plaintiff’s conduct was not insubordination or disobedience of a type where the employment relationship could not continue and the misconduct was irreconcilable with continued employment.

“She continued to meet deadlines and her manager described her performance as ‘professional’ leading up to Nov. 1, 2021. There was no evidence that her non-compliance with the vaccination policy negatively impacted the workplace, other employees or the defendant’s trust in her ability to do her job.”

WestJet said it could not allow Yee to remain working remotely because that would mean it would need to apply its vaccination policy differently to individual groups.

Argento said the company also failed to prove why this was a difficult task.

“The defendant did not demonstrate how or why it could not allow the plaintiff to continue working from home as she had been, particularly after receiving clarity that this would not run afoul of the regulations.

“It is possible that things may have changed, and that the plaintiff would have been required to go into the office at some future date, but that was not the case as of Dec. 1, 2021.”

Argento awarded Yee damages in the amount of $65,587.72, equivalent to 11 months’ notice.

He denied her $21,500 claim for moral damages, saying she did not prove that WestJet acted insensitively toward her in the matter of her dismissal.