The issue of Constructive Dismissal is reviewed in detail here.

Refusal to Mask Up

The Alberta decision of Feasby, J. in Benke v Loblaw Companies considered a claim made by the plaintiff employee who refused to wear a mask or similar device in the course of his employment, one which required him to visit stores. No medical evidence was offered to support his position.

The company chose not to terminate his employment but rather placed him on an unpaid leave of absence. This continued even until trial. The employer’s position was that, given that the mask mandate was since rescinded, that he was able to return to work.

The court rejected the constructive dismissal claim as it found that the employer’s action was reasonable. It dismissed the claim.

This is consistent with similar cases in which the employer had used this leave of absence approach to deal with employees who had refused to vaccinate, contrary to the employer’s policy.

Vaccine

The September 2022 case of Parmar v Tribe Management, a decision of the B.C.S.C. considered the issue of an employer mandated vaccine policy. This term purported to allow the employer to place an employee who declined to accept the vaccine on an unpaid leave. The policy exempted employees who could not comply due to religious or medical reasons. The court found these conditions reasonable and dismissed the constructive dismissal action.

These points should be noted:

1. The Defendant was not intending to terminate the employment for she could return to work at any time as long as she was vaccinated.
2. The Court took judicial notice both of the effect of the pandemic and the safety and utility of the vaccine.
3. The plaintiff was the only one of the 200 employees who refused. This alone was evidence of the objective basis that the policy was not unreasonable.
4. While it is extraordinary for an employer policy to affect one’s bodily integrity, given the extraordinary challenges of COVID, the policy was reasonable.
5. The plaintiff was not being forced to vaccinate, rather she was simply forced to make a difficult decision, vaccinate and work vs don’t vaccinate and don’t work.

This was the first civil case on this issue. There have been arbitral cases which were referenced in the decision.