Unpaid Leave of Absence Due to Refusal to Vaccinate – Constructive Dismissal?

Written by on December 16, 2022 in Covid-19 Centre, Employment Law Blog, Focus on Canadian Cases
Unpaid Leave of Absence Due to Refusal to Vaccinate - Constructive Dismissal?

During the COVID-19 pandemic, many employers adopted mandatory vaccination policies, and put those who refused to vaccinate on unpaid leave. Without income, these employees were put in financially precarious positions that forced them to choose between getting vaccinated or finding work elsewhere.

The question that many have raised since then is whether or not putting unvaccinated employees on an unpaid leave constituted constructive dismissal.

While the issue is still evolving, here is what we know so far.

What is Constructive Dismissal?

In Ontario, constructive dismissal is defined as when an employee is pushed out or forced to resign without an official letter of termination. It is sometimes known as “quitting with cause”. The employee leaves the organization because of the actions of their employer.

The courts may determine that constructive dismissal has occurred if the employer makes a significant and fundamental change to the terms or conditions of the employee’s work contract – such as change of hours, duties, work location etc. It can also occur if the employer allows for or creates a toxic work environment.

Since introducing mandatory vaccination policies would have certainly been a substantial change to the original terms of employment for many employees, some have argued that employers who insisted on mandatory vaccination for their employees constructively dismissed those who did not comply. But is this really the case? Civil cases over this issue are starting to emerge.

Parmar vs. Tribe Management

The first case in which the question of whether placing an employee on an unpaid leave for their refusal to comply with a mandatory vaccination policy could be construed as constructive dismissal was a case in British Columbia (Parmar vs. Tribe Management). This case is not binding on Ontario courts, however it can be persuasive. With surprise, the Court cited Prime Minister Trudeau in the decision, and ruled that the employer had the right to implement mandatory vaccine policies and place non-compliant employees on unpaid leaves. It is not surprising that this case is currently under appeal to the British Columbia Court of Appeal.

In this case, the employer implemented a mandatory vaccination policy that applied to all employees unless they had an exemption on medical or religious grounds. The policy also stated that employees who chose not to vaccinate for other personal reasons would be placed on an unpaid leave. There was no other discipline that was given to employees who chose not to vaccinate. Surprisingly, there was no just cause analysis to determine if the unpaid disciplinary suspension was justified.

The Plaintiff in this case was an employee who chose not to vaccinate and who was subsequently placed on a three-month unpaid leave which was later extended to an indefinite unpaid leave. The Plaintiff resigned from her job and claimed the policy amounted to constructive dismissal.

The Court concluded that the employer’s policy was reasonable as it was put into effect for safety reasons. Further, it concluded that by refusing to vaccinate, the Plaintiff resigned and was therefore not constructively dismissed. This is despite the vaccination policy saying that if the employee does not vaccinate, they would be put on an unpaid leave. There is a disconnect in the Court’s reasoning.

This is the first court decision on the issue of whether employees who are placed on unpaid leaves for non-compliance with vaccination policies during COVID-19 are constructively dismissed. We will need to wait and see the Court of Appeal’s view of the reasoning relied on by the lower Court and whether the decision is overruled.

Contact Minken Employment Lawyers today!

If you are an employer or an employee who needs advice on vaccination policies and/or constructive dismissal claims, or have been terminated or not paid due to refusing to comply with a vaccination policy, contact us today to speak to an experienced employment lawyer. We can be reached at: 905-477-7011 | Toll-Free: 1-866-477-7011 | contact@minken.com.

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Please note that this article is for informational purposes only and does not constitute legal advice.

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