In Benke v. Loblaw Companies Limited, the Alberta Court of Queen’s Bench ruled that an employee who was put on an unpaid leave of absence due to refusing to comply with the employer’s mandatory Mask Policy, did not amount to constructive dismissal. Rather, the Court determined that the employee had resigned.

Background:

In 2020, Loblaw instituted a masking policy for all employees and customers. The policy contained several exemptions, including (i) persons with an underlying medical condition which inhibits their ability to wear a mask, (ii) persons who were unable to place, remove, or use a mask without assistance and (iii) persons who were reasonably accommodated by not wearing a mask under human rights legislation.

Mr. Benke, a Loblaw employee, sought an exemption based on an undiagnosed medical condition. When Loblaw requested further medical information, his treating physician did not substantiate a medical justification. Given Mr. Benke’s non‑compliance with the Mask Policy, Loblaw put the employee on indefinite unpaid leave. The employee claimed that this action constituted constructive dismissal and that he was entitled to substantial damages in lieu of notice of termination.

The Decision

The Court rejected Mr. Benke’s claim citing the following findings:

• Mr. Benke did not present evidence of a disability or medical condition that required accommodation. For this reason, there was no discrimination and, accordingly, Loblaw had no duty to accommodate the employee.

• Imposing the mandatory Mask Policy was not a substantial change to the employee’s employment. The Court noted that the employee’s job responsibilities had not changed and rather the only thing that was different was a requirement to wear a mask. The Mask Policy was also co-extensive with legal requirements imposed by municipalities and public health authorities.

• Being placed on an unpaid leave was not a breach of the employee’s employment agreement. The Court noted the following well-recognized principle: the essence of the employment relationship is that the employee will work and the employer will pay. Mr. Benke’s inability to work was the consequence of a voluntary choice that he made and Loblaw had no obligation to pay him for not working.

Takeaway for Employers

The Alberta Court’s finding in Benke provides support and clarity for employers:  absent a valid medical or religious exemption, a properly drafted and implemented COVID-19 masking policy will not be considered a unilateral change in the employment relationship sufficient to establish a claim of constructive dismissal (or damages for pay in lieu of notice of the end of employment). In fact, once an employee has refused to comply with a mask policy, the employer may be able to treat the refusal as an immediate repudiation of the employment contract.

It remains to be seen whether the Court’s reasoning will apply in cases of COVID-19 vaccination policies, however employers may garner optimism that decision makers appear to have little patience for employees who cannot provide some type of objective evidence in support of their requests for exemptions.

If you have any questions about this topic, other COVID-19 related questions, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer  or refer to the Firm’s other COVID-19 website resources.

The author gratefully acknowledge the assistance of Allison Wight, an Articling Student in the firm’s Calgary office.