BC Supreme Court Finds Placing an Employee on Unpaid Leave for failing to Comply with Mandatory Vaccination Policy is not a Constructive Dismissal
In Parmar v. Tribe Management Inc., the British Columbia Supreme Court recently became the first court in Canada to confirm that an employer is entitled to place an employee on an unpaid leave of absence for failing to comply with its mandatory vaccination policy. The Court confirmed that placing the non-unionized employee on unpaid leave was reasonable and, as such, was not a constructive dismissal.
The decision establishes a judicial willingness to uphold the implementation of reasonable vaccine policies adopted during the COVID-19 pandemic as a response to government and public health guidelines.
Background
The Plaintiff was an accounting executive, who worked for 19 years with a Vancouver-based company which provides condominium management services.
In the fall of 2021, the Employer announced it would be implementing a mandatory vaccine policy which required all 200+ employees to be “fully vaccinated” by the end of November 2021. The Policy provided employees with religious or medical reasons with an exemption.
The Plaintiff made her objection to the policy, known to the Employer. She did not seek an exemption based on religious or medical reasons, instead, the Plaintiff based her objections on unsupported literature and news about the potential risks associated with the available vaccines.
The Plaintiff proposed various alternatives, such as working exclusively from home. The Employer confirmed that there would be no further exemptions, and subsequently placed the Plaintiff on leave without pay on December 1, 2021.
On January 26, 2022, the Plaintiff resigned from her position and commenced litigation, claiming she was constructively dismissed.
Decision
By way of a summary trial, the Court considered whether it was reasonable for the Employer to place the Plaintiff on an unpaid leave of absence for failing to comply with their mandatory vaccination policy.
The Court noted that the Plaintiff’s contract expressly provided that she would comply with all policies, which could be amended from “time to time” at the Employer’s discretion.
Relying on the Supreme Court of Canada’s matter of Potter v. New Brunswick, the court confirmed that the test for constructive dismissal involves considering two steps.
The first step applies where there has been a single act by the employer that may breach an essential term of the employment contract. This step requires the court to identify that an express or implied contract term was unilaterally changed. Once a breach is established, the court must determine whether a reasonable person, in the same situation as the employee, would have felt that the essential term of the contract was being substantially changed.
The second step in considering whether an employee was constructively dismissed is where an employer has taken a series of steps that, considered together made continued employment intolerable and demonstrate that the employer no longer intends to be bound by the terms of the employment contract.
The Court concluded that the employee had failed to meet the test for constructive dismissal concerning her administrative leave of absence, stating:
[152] [The employee’s] refusal to comply with the [the Policy] was a repudiation of her contract of employment. [The employer] did not accept that repudiation. Instead, it acted reasonably in putting her on an unpaid leave. She was not constructively dismissed from her position; she resigned. Any losses that she suffered from being put on unpaid leave were as a result of her personal choice not to follow [the employer’s] reasonable [Policy]. […]
[156] A reasonable employee in [the employee’s] shoes would not have felt in all the circumstances than an unpaid leave as a consequence of failing to comply with the [Policy] was a substantial alteration of an essential term of the employment contract. This is confirmed by the fact that all but one of her fellow employees complied with the [Policy] and that most adult Canadians have since been vaccinated—many as a condition of continued employment.
In addition, the Court confirmed that a mandatory vaccination policy must be measured based on the information available at the time it was implemented. Given the severity of the COVID-19 pandemic, and the employer’s obligation to provide a healthy work environment for their employees, the court held that the mandatory policy impacting an employee’s bodily integrity was reasonable.
The Court concluded that the Plaintiff remained entitled to her personal beliefs, and at all times, had the sole discretion to make a choice between getting vaccinated or remaining unvaccinated. The Plaintiff knew the consequences of choosing not to be vaccinated, and she still chose that path, which ultimately did not support her claim for constructive dismissal
Takeaway
The Court’s decision acts as a warning to employees who intend to claim constructive dismissal for their own failure to comply with an employer’s reasonable mandatory vaccination policy. This case also demonstrates that an employee’s unsupported personal beliefs do not supersede an employer’s obligation to provide a healthy work environment.