On December 1, 2023, the Alberta Labour Relations Board overturned the decision of an Employment Standards Officer to grant an employee termination pay for being “constructively dismissed” after being placed on leave due to non-compliance with the employer’s vaccination policy.

In Topco Oilsite Products Ltd. and Davis, the employee, a Service Centre Manager, alleged that he was constructively dismissed after refusing to comply with the employer’s COVID-19 Vaccination Policy (“the Policy”). 

In September 2021, the employer rolled out a mandatory vaccination policy which required its employees to be vaccinated for COVID-19 with a first dose by September 20, 2021 and a second dose by October 25. 2021.  Employees who chose not to get vaccinated were required to get tested weekly and provide the test results to their manager every Monday prior to starting work.  The costs and time associated with these weekly tests were to be the responsibility of the employee.

After being informed about the Policy, the employee told his supervisor that he did not wish to talk about it and advised that his reasons for opposing the vaccine were similar to the reasons raised by other employees.  He also raised religious concerns, however no particulars as to his claim for religious relief were provided.

When the employee did not provide either proof of vaccination or a negative test, the employer followed up reminding him of the Policy.  When he continued to object, the employer informed him that he would be placed on unpaid leave until one of the options available to him was exercised.

In the months that followed, counsel for the parties exchanged a series of letters in which the employee asserted claims of constructive dismissal, and the employer denied those claims.  This ultimately led to the employee tendering his resignation, and then pursuing a claim of constructive dismissal under the Alberta Employment Standards Code (the “Code”).  The Employment Standards Officer adjudicating the claim at first instance found in favour of the employee, and ordered the employer to pay termination pay.

On appeal by the employer, the Alberta Labour Relations Board (the “Board”) revoked the Order, finding that there was no constructive dismissal and that the Policy was reasonable and lawful.  In assessing the reasonableness of the Policy, the Board noted the following:

• Numerous other entities were establishing mandatory vaccine policies;
• The employer had a statutory obligation under the Occupational, Health and Safety Act to create a safe workplace, and to protect other workers and members of the public who attended at its premises;
• The employer’s policy contained an alternative to vaccines (weekly testing);
• The employee never supplied the employer with particulars as to his religious objections so that the employer could consider how its Policy may have affected those beliefs; and
• The employee provided no argument as to why the Policy’s alternative of weekly tests was unreasonable.

The Board ultimately concluded that the Policy was both reasonable and lawful, and that the employer was within its rights to place the employee on an unpaid leave of absence when he refused to adhere to the Policy.  As a result, no constructive dismissal occurred.

While every case needs to be evaluated on its own facts, this is at least the third reported wrongful dismissal decision in Canada which indicates that Courts and other adjudicators will be willing to dismiss constructive dismissal claims advanced by employees who were put on leave due to non-compliance with mandatory vaccination policies.

If you have any questions about this topic, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

The author gratefully acknowledges the assistance of Amanda Finelli, an Articling Student in the firm’s Toronto office.