Although the height of the COVID-19 pandemic was several years ago, ramifications of decisions made during that time are now emerging to the forefront. For corporations, this may mean repayment of business loans obtained during mandated closures, while employees may obtain closure on employment-related issues arising out of the pandemic.

In a recent decision, the Alberta Court of Justice was asked to determine whether an employee who was placed on an unpaid leave of absence after refusing to comply with her employer’s COVID-19 vaccination policy amounted to constructive dismissal.

Employment Contract Permits Employer to “Add, Change or Delete Policies”

In the case of Van Hee v Glenmore Inn Holdings Ltd., the plaintiff (the “employee”) is a 57-year-old who was employed by the defendant (the “employer”) as a server at the Glenmore Inn. She had been working there since 2008 and had worked as a server for most of her life, having ceased her formal education after completing grade 12.

When the employee signed her employment agreement, it was noted that it included a provision stating that “the hotel may add, change or delete policies as required.” The employee later testified that she did not think that these changes may be as “extreme” as she considered the COVID-19 policies when they were implemented.

Employer Implements Covid-19 Policy

When the pandemic first hit, the employee was laid off three times on a temporary basis. By September 2021, the Government of Alberta stated that, while the fourth wave of COVID constituted an emergency, businesses (including the employer’s) were allowed to remain open. This resulted in the employer developing and implementing its own COVID-related policy, which applied to employees, contractors, guests, and customers.

Under the policy, employees were required to receive their first COVID-19 vaccination by October 4, 2021, and a second vaccination by November 15, 2021. The employee told the Court that she voiced her opposition to the policy with her employer, noting that she was particularly concerned about the safety of the vaccinations. While the policy allowed for certain exemptions, the employer required a medical letter in support of the request. Although the employee tried to obtain an exemption letter, her doctor declined to provide one.

After failing to satisfy the medical exemption and refusing to comply with the employer’s vaccination policy, the employee was placed on an unpaid leave of absence on October 4, 2021. On November 15, 2021, the employee’s lawyer filed a civil claim arguing that the employee was a victim of constructive dismissal.

Employer Offers Employee Her Job Back in Return for Policy Compliance

The employer responded to this claim by offering the employee her job back if she agreed to comply with their COVID policy, which could include being vaccinated or undergoing COVID testing within 72 hours of her scheduled shifts. The employer said they considered this a re-employment offer, rather than a recall from her leave of absence, because the employer considered the employee to have resigned.

Unfortunately, the offer was never received by the employee because it was sent to the wrong email address. At the time of the hearing, the employee had still not found comparable work.

Employee Seeks Payment in Lieu of Notice

The employee sought payment in lieu of notice and the key issue before the Court was to determine whether the employer’s policy was reasonable, justified, and a lawful response to the COVID-19 pandemic. On the other hand, the employer denied that the employee had been dismissed, constructively or otherwise, and instead claimed that the employee had resigned her position about six weeks after she went on her unpaid leave of absence.

The Court referenced a 2015 Supreme Court of Canada decision that serves as the starting point for an analysis on situations like this one. That decision states that, in most cases, the employee bears the burden to establish that constructive dismissal has occurred. However, this burden shifts to the employer when an administrative suspension is at issue.

A 2022 decision from the Supreme Court of British Columbia was the first time the issue of mandatory vaccination policies was determined by a Canadian court rather than a tribunal. In that case, an employee who refused to comply with a mandatory vaccination policy was found not to have been a victim of constructive dismissal.

Employee Claims She Was Constructively Dismissed; Employer Argues Employee Abandoned Her Position

The employee told the Court that her employer was not subject to a government or health authority mandate, and that she was placed on an unpaid leave of absence when the employer had no contractual authority to do so. She argued that the employer had altered the employment relationship in a substantial and fundamental manner, which resulted in her constructive dismissal.

However, the employer asserted that the employee’s contract contained an express or implied term that she needed to comply with company policies, and that she never requested accommodation under the policy. The employer also told the Court that the employee simply abandoned her position.

Court Dismisses Employee’s Claim

The Court noted that there are several factors to consider when determining if an unpaid leave of absence was justified “including the duration of the suspension, whether the suspension was with pay, and whether there was good faith on the employer’s part, including the demonstration of legitimate business reasons.”

In this case, the Court found that the employer had a responsibility to take reasonable steps to protect the health of their employees and customers, and that it did so in order to continue to operate the business. As a result, the Court concluded the policy was reasonable and justified during the “extraordinary circumstances of the Pandemic in 2021” and the employee’s claim was dismissed.

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