Employer deems aircraft maintenance engineer in breach of policy
The Federal Court of Appeal has dismissed a judicial review application challenging the Canada Industrial Relations Board’s rejection of an unjust dismissal complaint brought by an aircraft maintenance engineer, whom WestJet terminated for breaching its COVID-19 vaccination policy.
From August to October 2021, the federal government announced and introduced multiple measures regarding COVID-19 vaccinations for employees in the federally regulated air, rail, and marine transportation sectors.
The measures required employers in those sectors to impose vaccination policies. The measures mandated full vaccination for certain employees, including airline sector employees attending aerodrome properties.
WestJet, an Alberta Partnership – the respondent in Henrikson v. WestJet, 2026 FCA 39 – established a COVID-19 vaccination policy to comply with the measures and fulfill its duties under the Canada Labour Code, 1985, to take reasonable precautions to protect its employees.
The policy required the vaccination of its employees before Oct. 30, 2021. The applicant, employed by WestJet as an aircraft maintenance engineer, failed to comply with the policy. WestJet terminated his employment on Dec. 1, 2021.
The applicant brought an unjust dismissal complaint with the Canada Industrial Relations Board. The Board dismissed his complaint.
The Board determined that WestJet fairly applied a reasonable, clear, and unequivocal vaccination policy to the applicant and had just cause to discipline him for failing to comply with the policy. The Board did not consider termination an excessive response.
The applicant applied for a judicial review of the allegedly unreasonable decision. He argued that the Board engaged in a procedurally unfair process, including preventing him from testifying about the possibility of rearranging his tasks, roles, and duties to let him temporarily work from home, thus resulting in a reasonable apprehension of bias.
The applicant added that the Board erred in finding that the federal government order requiring vaccinations for air, rail, and marine transportation sector employees was not unconstitutional or violative of s. 7 of the Canadian Charter of Rights and Freedoms.
Employee’s application denied
The Federal Court of Appeal saw no reviewable error in the Board’s reliance on Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455, and its refusal to find the federal government order unconstitutional.
Regardless of the order’s constitutionality, the court pointed out that the Board found WestJet’s vaccination policy reasonable for employee health and safety.
The court rejected the applicant’s arguments that the Board made unreasonable findings on WestJet’s vaccination policy and its justification for termination. The court noted that it could not reweigh or reassess the evidence, interfere with the factual findings, or reach its own conclusion.
The court ruled that the Board:
- appropriately relied on the analytical framework in Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. Ltd., 1965 CanLII 1009 (ON LA), to decide whether there was just cause for terminating an employee for breaching a company policy
- reasonably held that WestJet had just cause in the circumstances
- made no error in finding further notice or lesser sanctions unnecessary
The court saw no merit in the applicant’s allegations of an apprehension of bias or procedural unfairness. In reaching this conclusion, the court noted that:
- As master of its own procedure, the Board could rule on the admissibility of the evidence
- The record did not suggest that the applicant’s regular job duties did not require him to work at an aerodrome
- WestJet expected the applicant to visit aerodrome properties to help maintain and repair aircraft
- While accepting that the applicant had some administrative duties, the Board considered them secondary to his core responsibility of hands-on maintenance of the aircraft in the airport’s hangar bays
