Case In Point

Court Finds that Placing Employee on Unpaid Leave for Failure to Comply with Vaccination Policy was not Constructive Dismissal

Case In Point

Court Finds that Placing Employee on Unpaid Leave for Failure to Comply with Vaccination Policy was not Constructive Dismissal

Date: September 29, 2022

In Parmar v Tribe Management Inc., the British Columbia Supreme Court recently found that an employee was not constructively dismissed when she was placed on an unpaid leave of absence for refusing to comply with her employer’s mandatory COVID-19 vaccination policy (Policy). The Court held that the employer’s decision to place the employee on the unpaid leave was reasonable and that any losses she incurred as a result arose from her personal choice not to follow the Policy.

In the Fall of 2021, the employer announced that it would be implementing a Policy which would require all employees to become “fully vaccinated” by November 24, 2021. The Policy provided for medical or religious exemptions and allowed for extra time for those employees who were unable to meet the deadline.

The employee advised that she did not intend to become vaccinated. She did not, however, pursue a medical or religious exemption. Therefore, on November 25, 2021, the employer advised her that she would be put on an unpaid leave of absence from December 1, 2021, to February 28, 2022 because she had not complied with the Policy. This leave was subsequently converted to an indefinite leave. In response, the employee alleged that this amounted to a constructive dismissal at law.

By way of a summary trial, the Court considered whether the employer could place the employee on an unpaid leave of absence for failing to comply with the Policy.

The Court noted that while the employee’s contract expressly provided that she would “comply with all of [the employer’s] policies, as amended from time to time,” there was no express mention of leaves and no language regarding vaccination.

It then reviewed the applicable jurisprudence, including the test for constructive dismissal, as well as the positions of the parties. The Court concluded that the employee had failed to meet the test for constructive dismissal with respect to 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.

This is a novel decision which determines the validity of a vaccination policy providing for unpaid leaves of absence for non-compliance in the context of a constructive dismissal claim. It is a helpful decision for non-unionized employers who have implemented a mandatory COVID-19 vaccination policy, in that it supports an employer’s right to implement such a policy and place non-compliant employees on an unpaid leave.

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