In Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (Glenmore), the Alberta Court of Justice found that an employer’s mandatory vaccination policy was a reasonable, justified and lawful response to the extraordinary circumstances of the COVID pandemic. Furthermore, when the employer placed the employee on unpaid leave, it did not constructively dismiss the employee.  Rather, the employee resigned while on unpaid leave, when she sent a draft claim to her employer claiming she had been constructively dismissed and seeking damages in lieu of reasonable notice, as of the date her leave commenced. Accordingly, the court dismissed the employee’s claim for constructive dismissal and found that she was not entitled to pay in lieu of notice of dismissal from the employer.

Background

The employee was employed as a restaurant server for more than 13 years.  When she was hired, the employee entered into a written employment agreement with the employer (Employment Agreement), which stated, among other things, that the employee understood “that the hotel may add, change or delete policies as required.”

During the COVID pandemic, the employer implemented a mandatory COVID vaccination policy, which required employees to be fully vaccinated with a first dose by October 4, 2021, and a second dose by November 15, 2021 (Policy).  The Policy stated non-compliance by an employee could result in an unpaid leave of absence.

When the Policy was announced, the employee expressed concern about the safety of the COVID vaccines and stated that she was not vaccinated and was not going to be vaccinated in the future.  The employee also advised the employer that she understood the Policy and the consequences of non-compliance.

The Policy contained an exemption for employees who had written proof by a physician of a valid medical reason for not being vaccinated. The employee requested such proof from a physician, but it was denied.

There was also an “accommodations” section in the Policy for employees with a valid medical reason for not being vaccinated. The employee did not seek an accommodation. 

On October 4, 2021, the employee was placed on an unpaid leave of absence. 

The employee claimed she had been constructively dismissed and sought damages in lieu of reasonable notice, as of the date her leave commenced.

The employer alleged that the employee resigned on November 15, 2021, approximately six weeks after she went on unpaid leave, because she was not vaccinated as required by the Policy.

Decision

The court determined that the employee was not constructively dismissed.  Instead, she resigned on November 15, 2021, while on unpaid leave, when her draft claim was sent to the employer.  Accordingly, the employee was not entitled to pay in lieu of notice of dismissal from the employer.

Constructive Dismissal

On the issue of constructive dismissal, the court first considered the test set out in the leading case of the Supreme Court of Canada: Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10.  The court asked whether an unpaid leave of absence was reasonable and justified including: (a) the duration of the suspension, (b) whether the suspension was with pay, and (c) whether there was good faith on the employer’s part, including the demonstration of legitimate business reasons. To make this determination, the court considered two decisions we have previously discussed, Parmar v Tribe Management Inc. 2022 BCSC 1675 (Parmar), the first civil court case in Canada to find that an employer in a non-unionized workplace could place an employee on unpaid leave for failing to comply with the employer’s mandatory COVID-19 vaccination policy (discussed here); and Benke v Loblaw Companies Limited, 2022 ABQB 461 (Benke) in which the court held that an employer could place an employee on unpaid leave for failing to comply with its mandatory COVID-19 mask policy (discussed here). 

Duration

The court determined that although there was no set end date for the employee’s suspension, the circumstances that would end it were clear to her and, in the context of the pandemic, the Policy’s duration was reasonable.

Suspension with pay

In accordance with judicial precedent, the court found it was reasonable for the leave of absence to be unpaid.  The employee could continue receiving her benefits if she wanted to and she chose voluntarily not to comply with the Policy.

Imposed in good faith for legitimate business reasons

The court acknowledged that the employer was “not subject to an explicit government or health authority mandate with respect to vaccinations”; however, statutory obligations under the Occupational Health and Safety Act (OHSA) required the employer to take reasonable steps to protect the health and safety of its employees and the public.

The court was influenced by Parmar, in which the court held that the employer’s policy was a reasonable and lawful response to the uncertainty created by the COVID pandemic based on the information the employer had at the time. The Parmar court found that the policy “struck an appropriate balance between the [employer’s] business interests, the rights of its employees to a safe work environment, and the interests of its clients,” while also ensuring that individuals like the employee “could maintain a principled stance against vaccination without losing their employment by, instead, being put on a leave of absence.”

The court found these considerations applicable:

The [employer’s] business was dependent on providing face-to-face services. The [employer] imposed the Policy to ensure it could continue operating its business during the Pandemic. The Policy applied uniformly to guests and employees so that everyone would feel as safe as possible while at the [employer’s] premises. To apply the Policy in any other manner would have risked an outbreak and a temporary closing of the business. At the same time, the unpaid leave of absence was not intended to be a disciplinary measure for those that did not comply with the Policy. The [employee] would have been welcomed back to work when she got vaccinated or the public health guidelines changed.

Relying on Parmar and Benke, the court found that the Policy, including the consequence of an unpaid leave of absence, was reasonable and justified in the circumstances and, therefore, the unilateral act by the employer was not a breach of the Employment Agreement. The Plaintiff’s claim for constructive dismissal failed based on these considerations.

For completeness, the court found that a reasonable employee in the employee’s shoes would not have felt that an unpaid leave for failure to comply with the Policy was a substantial change to the Employment Agreement.

The court emphasized as well that putting the employee on an unpaid leave of absence, rather than terminating her employment, indicated the employer still intended to be bound by the Employment Agreement.  Accordingly, the employee’s claim for constructive dismissal also failed on this basis.  The employer “acted reasonably, lawfully and with justification in enacting the Policy that allowed the Plaintiff to make a choice as to whether she would be vaccinated.”

Resignation

The court noted that the two components of resignation are: (a) a subjective intention by the employee to quit and (b) conduct that would lead a reasonable person in the employer’s position to believe that the employee had carried out that intention.

Employee’s subjective intention to quit

The court concluded that the employee did not intend to return to her employment with the employer; she testified that she felt her employment had ended when her counsel sent the draft claim on November 15, 2021, and also that she began looking for other work shortly after she was placed on unpaid leave.

Conduct that would lead a reasonable person in the employer’s position to believe that the employee had carried out that intention

The employer did not hear from the employee inquiring about a return to work. The only communication it received was the draft claim. The court found that a reasonable employer in the employer’s position would have inferred, given the circumstances, that the employee’s lawyer’s letter enclosing the draft claim constituted a resignation by the employee.

The court noted that in a previous analogous case, that court found that explicit communication was not necessary for resignation. As the employee did not seek reinstatement and obtained employment with a different employer (which she did not accept), the court held that she resigned even if she did not explicitly communicate that to the employer. 

Bottom Line for Employers

This case, together with Parmar and Benke, suggests that a constructive dismissal claim will be dismissed when a court determines that the employer’s vaccination policy was reasonable and justified, and if, rather than being terminated, the employee was placed on an unpaid leave of absence.  Each constructive dismissal claim will, of course, be decided based on the particular facts of the case.