First published on Substack: https://dg4vp.substack.com/p/leave-without-pay-or-discipline-three 

Leave Without Pay or Discipline? - Three Years Later: PIPSC Vaccine Grievance Stalled Until Courts Decide Rehibi

What Is Happening With the Mandate Policy Grievance? You asked me what’s going on. This is what I found.

Dmitry Gorodnichy, Ph.D.

Sep 13, 2025

Disclaimer: I am writing this in my personal capacity as a member who had been elected to the NCR Executive and run for the Vice-President position last year. That experience gave me the privilege of connecting with many people within the union and made it easier for me to seek out information. However, I am not a spokesperson for PIPSC or for anyone else.

For updates on this action, visit: https://en.gorodnichy.ca/action-tracker/mandate-policy-grievance-update

Background

In the fall of 2021 and winter of 2021–22, hundreds of PIPSC members were placed on Leave Without Pay (LWOP) indefinitely, because of their non-compliance with the federal COVID-19 vaccine mandates, which they believed was unjust, unreasonable, not based on scientific evidence and violated their core fundamental rights.

To defend themselves, members filed individual grievances, seeking compensation for financial lost (many lost over a half a year salary) and psychological harm.

In May 2022, PIPSC filed a policy grievance against the government, arguing that it was unreasonable to continue placing members on LWOP beyond April 6, 2022. That was the date when the employer had promised to review the mandate but failed to do so. At the same time, PIPSC advised members to place their individual grievances in abeyance (on hold) until the outcome of the policy grievance.

Here is the official PIPSC announcement from that time:
https://pipsc.ca/news-issues/information-members-regarding-covid-19-coronavirus/vaccine-mandate-policy-grievance

Now, more than three years later in September 2025, there has been no public update on PIPSC’s website regarding the progress of this grievance, and no communication to members in this regard, not a single one.

This prolonged silence has left members frustrated and disappointed. For many, the grievance process represented the only hope of recovering part of what was lost during the months they were forced off work. The lack of updates undermines trust in the union’s accountability.

The outcome of the policy grievance is not a small technical detail. It will determine whether members may be eligible for compensation or recognition that being placed on LWOP was punitive and unjust.

What’s Going On

Here is the current situation in plain language:

• The policy grievance is still unresolved. The labour board (FPSLREB) has not yet decided whether to dismiss or proceed with the case, after hearing preliminary objections from the employer.

• The case has been adjourned while waiting for a decision from the Federal Court of Appeal in a related matter.

• The central legal question is: Was leave without pay a disciplinary measure, or was it just an administrative policy?

This distinction matters. If LWOP is disciplinary, then employees are entitled to the legal protections and remedies that come with disciplinary action. If it is not, then the employer can argue it was simply enforcing a policy, with fewer consequences for violating fairness or due process.

The Role of Rehibi and Lavoie

Two cases are shaping this debate.

Rehibi v. Deputy Head (Department of Employment and Social Development), 2024 FPSLREB 47 is the labour board case that deals directly with the COVID-19 vaccination policy for federal public service employees. It examines whether LWOP under the vaccination policy should be treated as discipline. The board has not yet issued a final decision.
Link: https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521152/index.do

Lavoie v. Canada (Attorney General), 2002 SCC 23 is a Supreme Court of Canada case from 2002. It was not about vaccines, but about whether giving hiring preference to citizens over permanent residents in the public service was discriminatory. The Court ruled it was discrimination, but justified. The importance of Lavoie is in the legal reasoning on how employer policies can create differential treatment. That reasoning is now being applied in cases like Rehibi.
Link: https://www.canlii.org/en/ca/scc/doc/2002/2002scc23/2002scc23.html

In short: Rehibi is our case. Lavoie is the precedent. The Federal Court of Appeal’s decision will clarify whether LWOP is disciplinary in nature, which will determine how Rehibi and our grievances move forward.

Appendix A below provides more details on each of these cases and their relation to the PIPSC Policy Grievance.

What to Expect Next

• A decision from the Federal Court of Appeal is expected to clarify the legal standard. Once that happens, the Rehibi case should move forward.

• After that, the labour board will decide whether the grievances can proceed, and under what framework.

• Only then will PIPSC be in a position to pursue remedies for members affected by LWOP beyond April 6, 2022.

Until then, all grievances remain in abeyance, and members remain in uncertainty.

References

• PIPSC, Vaccine Mandate Policy Grievance:
  https://pipsc.ca/news-issues/information-members-regarding-covid-19-coronavirus/vaccine-mandate-policy-grievance

• FPSLREB Decision Portal – Rehibi v. Deputy Head (Department of Employment and Social Development), 2024 FPSLREB 47:
  https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521152/index.do

• Federal Court of Appeal Decisions:
  https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/nav_date.do?col=53

• Lavoie v. Canada (Attorney General), 2002 SCC 23:
  https://www.canlii.org/en/ca/scc/doc/2002/2002scc23/2002scc23.html

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Appendix: Rehibi and Lavoie – How They Relate to the PIPSC Policy Grievance

Rehibi v. Deputy Head (Department of Employment and Social Development), 2024 FPSLREB 47

This case comes directly from the COVID-19 Mandatory Vaccination Policy for the Core Public Administration. Employees who did not comply were placed on Leave Without Pay (LWOP) unless they received accommodation.

The Board describes the context clearly:

“Employees in the core public administration who were not fully vaccinated and who did not have an approved accommodation request were placed on leave without pay.”
(Source: FPSLREB Decision – Rehibi)

The central question in Rehibi is whether this LWOP should be legally considered disciplinary action (like suspension without pay, which carries due-process protections) or whether it was an administrative measure (a simple application of employer policy).

The employer raised preliminary objections seeking to block or narrow the grievance before a full hearing. The case was then adjourned because both sides agreed to wait for clarification from the Federal Court of Appeal.

Why this matters:

• If LWOP is ruled to be disciplinary, members could argue they were punished without due process, which opens the door to compensation or remedies.

• If it is ruled administrative, then the employer may avoid those consequences.

The PIPSC policy grievance filed in May 2022, which challenges LWOP beyond April 6, 2022, is directly tied to the outcome of Rehibi. Until this case is resolved, the grievance remains stalled.

Lavoie v. Canada (Attorney General), 2002 SCC 23

This is an older but influential Supreme Court of Canada case. It dealt with section 16(4)(c) of the Public Service Employment Act, which gave preference to Canadian citizens in federal hiring competitions. Non-citizens (permanent residents) challenged the rule as discriminatory.

The Court agreed that it was discrimination:

“The statutory preference granted to Canadian citizens is discriminatory under s. 15(1) of the Charter.”
(Source: CanLII – Lavoie v. Canada)

However, the Court upheld the law anyway under section 1 of the Charter, saying it was a reasonable limit in a free and democratic society:

“Although discriminatory, the provision can be justified as a reasonable limit demonstrably justified in a free and democratic society.”
(Source: CanLII – Lavoie v. Canada)

Why this matters: Lavoie established how courts analyze differential treatment in the federal public service. It laid out the legal test for when discrimination or punitive treatment may be justified by the employer.

Connection to the PIPSC Policy Grievance

The PIPSC policy grievance is essentially frozen because the labour board and the parties are waiting for the Federal Court of Appeal’s interpretation in relation to Rehibi. That decision will determine whether LWOP under the vaccine mandate was disciplinary in nature.

• Rehibi is the grievance case itself, testing whether LWOP was discipline.

• Lavoie is the legal precedent that guides how courts decide whether differential treatment (like LWOP for non-compliance) is discriminatory or justifiable.

In other words, the union’s policy grievance filed in 2022 cannot move forward until Rehibi is resolved, and Rehibi itself is being shaped by the standards laid down in Lavoie.

As the Board itself notes, all parties are waiting:

“When a decision is rendered by the Federal Court of Appeal, it will certainly be publicly available on their website.”
(Source: FPSLREB Decision Portal)

Until then, PIPSC members’ grievances remain in abeyance, with no resolution on compensation or recognition of the harms caused by prolonged LWOP.