BC Supreme Court

BC Supreme Court Finds Unpaid Leave Under Vaccination Policy Was Not a Constructive Dismissal

The Supreme Court of British Columbia has issued its first court decision addressing the issue of whether placing a non-union employee on an unpaid leave of absence under a mandatory COVID-19 vaccination policy amounts to a constructive dismissal.

In Parmar v. Tribe Management Inc., 2022 BCSC 1675 (“Parmar”), the Court found that the plaintiff was not constructively dismissed when her employer placed her on an unpaid leave of absence for failing to receive her COVID-19 vaccine as required by her employer’s mandatory vaccine policy (“MVP”).

The Facts

In response to rising health and safety concerns from COVID-19, the Employer implemented a MVP on October 5, 2021. The MVP required that all employees be fully vaccinated by November 24, 2021, but provided for medical and religious exemptions.

All of the Employer’s employees, except the Plaintiff and one other person, complied with the MVP. The Plaintiff refused vaccination because she claimed she had observed several of her family members experience severe health issues after receiving their vaccines. She further believed that the vaccines were hastily developed and distributed, and there was little known about their long-term side effects. The Plaintiff never requested any medical or religious exemption to the MVP.

Following the deadline in the MVP, the Plaintiff was advised that she would be placed on a three-month unpaid leave of absence and that the leave would be reviewed periodically. The Plaintiff proposed several alternative measures to vaccination that the Employer could take to mitigate the risk of COVID-19 and that would allow her to return to work, including regular rapid testing at her own expense. The Employer was not agreeable to this proposal and affirmed that as long as the Plaintiff remained unvaccinated, she would continue to be on leave. The Plaintiff advised that she considered herself to have been constructively dismissed and pursued legal action.

Analysis on Constructive Dismissal

The Court reviewed the test for constructive dismissal articulated by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (“Potter”). A constructive dismissal may occur where either, (1) an employer has engaged in a single action that may breach an essential or fundamental term of the employment agreement; or (2) an employer engages in a series of actions that when taken together, demonstrates that the employer no longer intends to be bound by the terms of the employment contract. In either case, an employee may elect to accept their employer’s alleged repudiation and bring the employment relationship to an end by alleging constructive dismissal.

In considering whether an unpaid leave of absence constitutes a fundamental change to the employment contract (under the first branch of the Potter test), the Court’s analysis focused largely on whether the Employer had good faith business reasons for placing the Plaintiff on an unpaid leave of absence for failing to comply with the MVP. In other words, was it a reasonable approach based on what was known about COVID-19 at the time the MVP was implemented?

While the Court acknowledged that it is “extraordinary” for an employer to implement a vaccination policy of this nature, in the context of the challenges posed by the COVID-19 pandemic, the Court concluded that such policies are reasonable.

The Court specifically noted that MVPs do not force employees to be vaccinated. Instead, they force the employee to make a choice to receive their vaccine and continue to earn an income, or to remain unvaccinated on an unpaid leave of absence. The Court emphasized that the Plaintiff was aware that the consequence of failing to follow the MVP was being placed on unpaid leave. The Plaintiff could have made the choice to receive her vaccine and could have returned to work at any time; however, she chose not to comply with the MVP.

The Court also commented that in this case, the Employer’s actions did not evidence any intention to terminate the employment relationship. The Plaintiff’s leave was temporary and subject to review. She continued to receive some benefits. She was not replaced while on leave and had recently been assigned a new management position.

Ultimately, the Court concluded that the Plaintiff was not constructively dismissed. She resigned her employment and any losses she suffered from being placed on unpaid leave were the result of her choice not to comply with the MVP.

Key Takeaways for Employers

This decision is an important one for B.C. employers and particularly those who have implemented COVID-19 vaccination policies in non-union workplaces or policies applicable to exempt employees. The decision clarifies that mandatory COVID-19 vaccination policies implemented in similar circumstances, which give the employee the option of receiving their vaccination or being placed on an unpaid leave of absence, are reasonable in the context of the COVID-19 pandemic and do not amount to a constructive dismissal.

If you have any questions about this article, please contact Nicole Toye or your Harris lawyer.