An Alberta court has ruled that a Calgary grocery store worker placed on indefinite unpaid leave — for failure to comply with a mandatory mask policy — has resigned as opposed to being constructively dismissed and isn’t entitled to reasonable notice or compensation in lieu thereof.
“This decision may signal that adjudicators will have little patience for individuals who can’t explain why they refuse to be masked or vaccinated,” says Jackie Laviolette, counsel in labour and employment at Mathews Dinsdale & Clark LLP’s Calgary office, who wasn’t involved in the case.
In August 2020, Loblaw Companies Ltd. instituted a mandatory mask policy in its stores to prevent the spread of the coronavirus. The policy followed legal requirements by the City of Calgary and public health authorities, but allowed for exemptions for individuals with medical conditions that inhibited their ability to wear a mask.
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The employee sought an exemption and submitted two letters from his doctor stating he was unable to wear a mask. However, the letters didn’t confirm this was due to a medical condition or disability.
The worker refused to comply with the mask policy and when Loblaw placed him on indefinite unpaid leave, he claimed he was constructively dismissed and entitled to reasonable notice.
But Justice Colin Feasby of the Alberta Court of Queen’s Bench sided with the employer. Given the worker’s failure to provide evidence of a medical condition or disability that interfered with his ability to wear a mask, he rules Loblaw had no obligation to accommodate him. The mask policy wasn’t a substantial change to employment that would support a claim of constructive dismissal — particularly since the policy was coextensive with legal requirements imposed by the City of Calgary and public health authorities — and was similar to mask policies that other decision-makers, including the Human Rights Tribunal of Alberta, had found to be reasonable.
The court ruled Loblaw’s decision to place the employee on unpaid leave wasn’t a breach of the employment agreement — since the employee chose not to work by refusing to comply with the mask policy, Loblaw had no obligation to pay him.
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Feasby also noted that, while the employee didn’t expressly communicate a resignation to the company, he obtained other employment, returned his company car and commenced a lawsuit and human rights complaint against Loblaw. According to the judge, these actions confirmed the employee’s resignation and therefore any losses he suffered weren’t the company’s responsibility.
Gary Clarke, a partner in Stikeman Elliott LLP’s Calgary office who wasn’t involved in the case, says although a key factor in the court’s decision was the existence of a municipal bylaw backing up Loblaw’s masking policy, its presence wasn’t necessarily determinative. “The court’s analysis could well apply even if no public bylaw or health authority directive existed, so long as the company’s policy was reasonable.”
What remains to be seen, he says, is how this decision will play out in vaccine refusal cases where there isn’t a valid reason for an exemption and no basis for accommodation. “This decision could help employers in those types of cases.”
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