By Howard Levitt and Eduard Matei
Follows similar rulings in other jurisdictions
What is constructive dismissal?
To begin with, constructive dismissal involves circumstances where an employer changes an employee’s terms of work. There is something of a sliding scale involved in meeting the definition, but where the court finds that the changes are substantial enough to warrant it, it will treat an employee’s resignation from that job as if they were terminated without cause. A finding of constructive dismissal brings with it all of the liabilities on the employer associated with such a termination, including payment of notice, severance and wrongful dismissal damages to the former employee. Where no constructive dismissal is found, the resignation is treated as just that, disentitling the employee to notice, severance and employment insurance.
The difficult part is assessing how much of a change is necessary to tip this scale. In a post-COVID-19 world beset with all of the changes the pandemic has wrought, the question of whether an employee’s interest in remaining unvaccinated trumps their employer’s interest in curating a safe working environment has been debated, but we have always held in these pages and to our clients that the courts will favour employers’ decisions in the interest of their employees’ health. In other words, that requiring compulsory vaccinations to attend the workplace in most instances will be held to be legal and refusing to vaccinate cause for at least an unpaid layoff.
What happened here?
Deepak Parmar, the employee in this case, was put on a leave of absence by the employer, a provider of condominium management services, for not complying with Tribe’s mandatory vaccination policy. The policy was enacted in November 2021 when the company sought to return to in-office operations following significant declines in productivity in a remote model attempted during the opening act of COVID-19. Parmar was one of just two employees — out of more than 200 — who did not comply.
Following existing case law, the court accepted that COVID-19 was a potentially deadly virus and easily transmissible, and that vaccines were effective in reducing the severity of symptoms and bad outcomes, even if they did not prevent infection, reinfection or transmission.
On this basis, Justice MacNaughton weighed Parmar’s personal beliefs and anecdotal negative vaccine experiences against the policy. The question before the court was ultimately whether this forced leave of absence by the employer amounted to a constructive dismissal.
The court framed the issue as a difficult choice for Parmar: to vaccinate and continue her employment, or to not vaccinate and end it. It was Parmar’s decision to not follow a consistently enforced policy put in place for the safety of the employer’s operations, and consequently her decision to not continue working there. In short, the court found no constructive dismissal. Parmar’s resignation was just that, a resignation. The logic of this decision would also mean that an employee who was fired or placed on an unpaid leave of absence for refusing to vaccinate would similarly have no recourse.
What does this mean?
For employees, this decision means that refusing to follow policies by the employer on the basis of personal belief, will not result in a positive outcome.
However, it does not mean that all policy mandates implemented by an employer are reasonable, and it does not mean that you do not have any grounds for exclusions from those policies.
For employers, this decision gives some assurance that properly implemented and consistently enforced vaccination policies are not likely to lead to liabilities owed to those who refuse to comply.
It is important to note, however, that this decision does not create a right for employers to implement any policy (whether vaccine or otherwise) with an accompanying carte blanche to let employees go without liability where it is not followed. Where, for example, employees work entirely from home and have no demonstrated need to attend the office, a court may not find such invasive policies meet the requisite threshold.
Not only must the scope and effect of policies be carefully considered, but they must be consistently enforced. Had the employer not followed those tenets, Parmar may well have succeeded.
For the law, this decision is the last in a fairly consistent line of Canadian jurisprudence.
It also follows a parallel trajectory in developing case law as in Alberta in Benke v Loblaw Companies Limited, where the court found that non-adherence to a mask policy similarly did not constitute a constructive dismissal, and was treated as a resignation instead.
While significant uncertainty on specific scenarios still remains, the legal goal posts with regards to COVID-19 employment issues appear to be finally coming into focus. That being said, Parmar is currently preparing to appeal the decision, meaning there is still a slight chance they may shift again.