Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (“Van Hee”) is an important decision for Canadian employers. It is only the second civil court decision to assess whether the placement of an employee on an unpaid leave of absence, in response to the employee’s failure to comply with a mandatory vaccination policy, amounts to a constructive dismissal.
In a detailed analysis, Judge Burt of the Alberta Court of Justice concluded that the Employer’s mandatory vaccination policy was reasonable and justified, and that the unilateral placement of the Plaintiff on an unpaid leave of absence was not a constructive dismissal.
This decision is also noteworthy because:
- Judge Burt found that the Plaintiff resigned from her employment when, while on unpaid leave, the Plaintiff’s legal counsel issued a draft Civil Claim to the Employer. According to Judge Burt: “That conduct was inconsistent with the continuation of an employment relationship between the parties.”
- The case was argued on November 7, 2023 and a written decision was issued just ten days later on November 17, 2023. Such a quick turnaround may suggest that this case was expedited in response similar claims currently before Alberta’s courts.
The Decision Facts
The Plaintiff employee (the “Employee”) was employed by the Defendant employer (the “Employer”) as a server in a restaurant for over 13 years.
In mid-September 2021, in the context of the fourth wave of the COVID-19 pandemic, the Employer introduced a mandatory vaccination policy (the “Policy”), which required its employees to be fully vaccinated against COVID-19 by November 15, 2021.
The Employee was concerned about the safety of the vaccines, and chose not to get vaccinated. She did not seek an accommodation permitting non-compliance with the Policy, but she did suggest health-related reasons that precluded her from being vaccinated.
Shortly after the Policy was announced, the Employee communicated to the Employer that she had read the Policy and did not agree with it. She also indicated that she was not vaccinated and would not be getting vaccinated. The Court found that the Employee was aware that failure to get vaccinated would result in her being placed on an unpaid leave of absence.
On October 4, 2021, the Plaintiff was placed on an unpaid leave of absence. The Employee argued at trial that she was constructively dismissed as of this date. On November 15, 2021, the Plaintiff’s lawyer sent a letter to the Employer, enclosing a draft Civil Claim alleging that the Employee had been constructively dismissed. As noted above, Judge Burt found that the issuance of this draft Civil Claim amounted to a resignation by the Employee.
Judge Burt first considered the test to assess constructive dismissal claims, which was set out by the Supreme Court of Canada in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10. Under this test, Judge Burt observed that, in the context of administrative suspensions, the “overriding question will be whether the suspension was reasonable and justified.”
In order to make this assessment, Judge Burt considered in detail the British Columbia Supreme Court’s decision in Parmar v Tribe Management Inc. 2022 BCSC 1675 (“Parmar”) and the Alberta Court of King’s Bench decision in Benke v Loblaw Companies Limited, 2022 ABQB 461 (“Benke”).
Parmar, which was released on September 26, 2022, was the first non-union decision in Canada to consider issues similar to those before Judge Burt. Of note, the Court in Parmar assessed the reasonableness of the mandatory vaccination policy based on the employer’s knowledge about the virus at the time the policy was implemented and within the context of the employer’s obligation to ensure the health and safety of its employees, customers and members of the public.
Drawing on Parmar and Benke, Judge Burt concluded that the Policy was a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic, striking a balance between:
- the Employer’s clear business interests in keeping its operations running and avoiding a shutdown;
- the Employer’s obligations under occupational health and safety legislation to ensure the health and safety of its workers; and
- the Plaintiff’s ability to follow her own personal convictions by not getting vaccinated without losing her employment.
In the circumstances, the unilateral placement of the Plaintiff on an unpaid leave of absence was not a breach of the employment contract and did not amount to a constructive dismissal.
This case is a welcome addition to the reasoning in Parmar and Benke. While constructive dismissal claims always turn on the facts, these decisions suggest that many constructive dismissal claims will fail where the vaccination policy in question is reasonable and justified, and the employee was placed on an unpaid leave of absence, rather than being terminated.