In September 2022, the B.C. Supreme Court released its decision in Parmar v. Tribe Management Inc.. This was the first Canadian civil court decision to weigh in on whether an employer is entitled to place an employee on unpaid leave for non-compliance with a mandatory vaccination policy ("MVP"), and whether doing so constitutes constructive dismissal.

Background

The Defendant, a provider of condominium management services, implemented an MVP for its employees to help deal with the threats of COVID-19. The MVP applied to all employees and required them to be fully vaccinated by November 24, 2021. Employees who were non-compliant with the MVP after the deadline were to be placed on unpaid leave.

The Plaintiff objected to the Defendant's requirement to get vaccinated. She did not claim to have any religious or medical reason for failing to be vaccinated. Rather, she raised concerns over the speed at which the COVID-19 vaccines were developed and distributed, and that there was limited data about their long-term efficacy and health implications for certain people. She stated that she was fearful of negative side effects from getting vaccinated, and cited her family's health history, including negative health impacts allegedly experienced by family members in the aftermath of receiving a COVID-19 vaccine, as a factor in her position. The Plaintiff proposed various alternatives to vaccination, but she was advised that there would be no exceptions to the MVP.

The Plaintiff was non-compliant with the MVP as the deadline passed, and she was subsequently placed on a three-month unpaid leave. This leave was later changed to one of indefinite duration, after which the Plaintiff notified the Defendant that she considered herself to be constructively dismissed.

The Plaintiff argued that the Defendant fundamentally breached its employment obligations, resulting in her claiming constructive dismissal. She also contended that the MVP was unreasonable in not making an exception for employees who could work from home.

The Decision

The Court found the Defendant's MVP to be a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information available to it. In making this finding, the Court emphasized the following:

  • the MVP allowed for religious and medical exemptions;
  • a significant amount of information available indicated that vaccines were the best and safest method to prevent COVID-19 infection;
  • the MVP reflected the Defendant's statutory obligation to ensure a safe workplace;
  • the MVP struck an appropriate balance between the Defendant's business interests, the employees' right to a safe workplace, the Defendant's clients' interests, and the interests of the people its clients serviced;
  • the MVP was not arbitrarily or selectively applied;
  • the MVP respected the Plaintiff's right to choose to be vaccinated by placing her on unpaid leave; and
  • the MVP was to be reviewed as more was learned about COVID-19.

The Court further found that placing the Plaintiff on unpaid leave was not a termination of her employment, but was rather the Defendant's refusal to accept the Plaintiff's repudiation of her employment contract due to her non-compliance with the MVP. The Court noted that the Defendant had not filled the Plaintiff's position, and that she was free to return to her position once she became vaccinated. The Court also stated that the Plaintiff had made a personal choice to remain unvaccinated, and the unpaid leave was a consequence of that choice. As a result, the Court found that the Plaintiff had not been constructively dismissed, and instead she had resigned.

The Court also compared this case to the recent Alberta Court of Queen's Bench decision Benke v. Loblaw Companies Limited ("Benke"), in which the Court found that an employee had not been constructively dismissed when he was placed on unpaid leave for failing to comply with the mandatory masking policy that his employer had implemented in response to the COVID-19 emergency. Like in Parmar, the Court in Benke found that the Plaintiff had resigned, and that the position he found himself in was the result of a personal choice.

Concluding Thoughts

After months of arbitration decisions addressing the reasonableness of vaccination policies in unionized workplaces, non-unionized employers finally have some guidance from the courts on this similar issue. This decision is instructive for other non-unionized employers who implemented vaccination policies during the pandemic, especially given its finding that, in the circumstances of the case, placing the Plaintiff on unpaid leave was not a constructive dismissal. While this case is welcome news to employers, it is important to remember that the reasonableness of a given vaccination policy will generally turn on the facts of the specific case. Additionally, employers have yet to receive firm guidance from courts as to whether employees who have been terminated (rather than placed on unpaid leave) for non-compliance with an MVP are properly considered to have been terminated for "just cause." Employers should carefully considers how non-compliant employees are to be treated in the specific circumstances in each case, especially until there is further judicial guidance on these issues.

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