Released on November 17, 2023, the recent decision of Van Hee v. Glenmore Inn Holdings Ltd. (available here) is only the second reported court decision in Canada dealing with the question of whether a leave of absence flowing from non-compliance with a mandatory vaccination policy constitutes constructive dismissal.

In Van Hee v. Glenmore Inn Holdings Ltd., the Plaintiff – a server with 13 years of service – alleged that she was constructively dismissed after refusing to comply with her employer’s mandatory vaccination policy (the “Policy”).  At the time, the Plaintiff did not have, nor did she claim, any medical condition or religious belief restricting her from being vaccinated against COVID-19. 

In September 2021, the Government of Alberta stated that the fourth wave of COVID-19 had created a state of public health emergency. However, the Employer and other businesses were permitted to stay open pursuant to the Government’s “Restrictions Exemption Program”.

In response, the employer rolled out the mandatory vaccination policy in mid-September 2021 which required its employees to be vaccinated for COVID-19 with a first dose by October 4, 2021 and a second dose by November 15, 2021. The employer met with the Plaintiff on two separate occasions to discuss the Policy and remind the Plaintiff of the consequences of not getting vaccinated.  The Plaintiff’s understanding of both the Policy and repercussions associated for non-compliance were also confirmed in writing.  When the Plaintiff did not comply, she was placed on an unpaid leave of absence on October 4, 2021.

While leave of absence was unpaid and indefinite in duration, it was the company’s stated intention for the Plaintiff to return to work after she met the vaccination requirements or the underlying public health guidelines changed.  The Plaintiff was also given the option to continue receiving her company benefits by continuing to pay the employee portion of the monthly premium throughout her leave.

At trial, the Plaintiff took the position that because her employer was not subject to any government or health authority mandate with respect to vaccinations, the company’s decision to place her on an unpaid leave of absence without explicit contractual authority to do so was a significant unilateral change to the terms of her employment. Accordingly, she claimed that the company had altered the employment relationship in a manner that was both sufficiently substantial and fundamental to trigger constructive dismissal.  

In rejecting the claim of constructive dismissal, the Court relied on the recent case of Parmar v. Tribe Management Inc. (discussed in more detail here) and reasoned that, like in Parmar, the issue to determine was whether the policy in question was a reasonable approach when implemented, given the uncertainties presented by the pandemic at the time.

The Court’s analysis in this decision is likely to be useful to other employers seeking to defend mandatory vaccination policies, and in particular, decisions made to place employees on leave as a result of non-compliance, as the Court was influenced by a number of factors, including:

• Despite the company not being subject to an explicit government or health authority mandate with respect to vaccinations, the employer’s policy was a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information that was then available to it, striking the right balance between the various competing interests;
• As a face-to-face business, the Policy had been imposed in an effort to ensure it could continue operating its business during the pandemic, and that “to apply the Policy in any other manner would have risked an outbreak and temporary closure of the business”;
• The company’s health and safety obligations required the employer to take reasonable steps to protect the health and safety of its employees and others;
• The vaccination policy had been applied uniformly to both guests and employees “so that everyone would feel as safe as possible while at [the employer’s] premises”; and
• The unpaid leave of absence was not intended to be a disciplinary measure for those who refused to comply with the Policy.

In so finding, the Court noted that both the mandatory vaccination policy itself, and the decision to place the Plaintiff on unpaid leave of absence due to non-compliance with the Policy, were reasonable and justified in the circumstances. As a result, the Plaintiff’s claim of constructive dismissal and breach of contract was dismissed with costs to the employer. The Court held that she was not entitled to pay-in-lieu of notice of dismissal and further concluded that she had resigned while on an unpaid leave of absence.

While every case needs to be evaluated on its own facts, Parmar and now Van Hee are hopefully a promising indicator that the Courts across the country will be willing to uphold mandatory vaccination policies, and dismiss constructive dismissal claims advanced by employees who were put off work due to non-compliance with those policies.

The authors gratefully acknowledge the assistance of Sharon Canete, an Articling Student in the firm’s Toronto office.