THE EMPLOYERS' EDGE
Employee Not Constructively Dismissed When Placed on Leave of Absence for Violating Mandatory Vaccination Policy Says BC Court
In a welcomed decision for employers, the Supreme Court of British Columbia has ruled that placing a worker on an unpaid leave of absence for failing to comply with a mandatory vaccination policy (“MVP”) does not constitute constructive dismissal at common law.
In Parmar v Tribe Management Inc., 2022 BCSC 1675 the plaintiff alleged that she was constructively dismissed after being placed an unpaid leave of absence after she refused to comply with the company’s mandatory vaccination policy. The plaintiff did not seek an exemption from the mandatory vaccination policy on either medical or religious grounds but rather objected to being vaccinated because she was concerned that the vaccines were prepared and distributed hastily and believed that there was limited data about their long-term efficacy and potential negative health implications for certain individuals.
In response, the company took the position that the mandatory vaccination policy was a reasonable and lawful response to the uncertainty of the COVID-19 pandemic and was implicitly authorized by the terms of the employment contract. The company also argued that it was justified in placing the plaintiff on a leave of absence for failing to comply with the MVP. Given that that the consequence of the plaintiff’s refusal to be vaccinated was foreseeable, the plaintiff voluntarily assumed that consequence. As such, the company took the position that if the plaintiff sustained any losses, they were as a result of her failure to mitigate her losses by becoming vaccinated.
In arriving at its decision, the Court first noted that the plaintiff’s “… employment contract with [the company] expressly provided that she would comply with all of its policies, as amended from time to time at [the company’s] discretion. That provision allowed [the company] to implement and amend workplace policies and obliged [the plaintiff] to comply with them. [The company’s] right to implement policies was only subject to the implied qualification that any such policy would be reasonable and lawful” (para 88).
The plaintiff acknowledged that the policy was not unlawful but took the position that it was “unreasonable to the extent that it did not make an exception for employees who were able to work from home either entirely or almost entirely” (para 89).
The Court rejected plaintiff’s argument and dismissed her constructive dismissal claim. In doing so, the Court made the following findings:
 [The Company’s] MVP 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.
 The policy, as drafted, allowed for both medical and religious exemptions, neither of which were then, or are now, asserted by [the plaintiff]. Although [the plaintiff] was critical of [the company] for not conducting a formal risk assessment with respect to its employees and clients and not retaining experts to advise them, there was a lot of information generally available that indicated that vaccines were the best available chance to prevent infections, they were safe, and they were mandated as a requirement for participation in may other aspects of citizens’ lives. [The company] set up a committee to consider its options, and Ms. McMahon, as a member of that committee, was actively involved in gathering and reviewing the available information.
 It is not surprising that, until the introduction of the MVP, [the company’s] employment policies did not require its employees to be vaccinated. COVID-19 presented an unprecedented worldwide challenge to governments, health authorities, and providers. It also presented a unique and unanticipated challenge to employers and employees.
 The MVP reflected the prevailing approach at the time. It struck an appropriate balance between [the Company’s] business interests, the rights of its employees to a safe work environment, its clients’ interests, and the interests of the residents in the properties it serviced. It also satisfied its responsibility as a corporate citizen. At the same time, it ensured that individuals like [the plaintiff] could maintain a principled stance against vaccination without losing their employment by, instead, being put on a leave of absence.
Ultimately, the Court concluded that the company did not terminate the plaintiff’s employment when it placed her on a leave of absence. Rather, the Court found that the company “… wanted the employment relationship to continue as they had plans for [the plaintiff’s] role in management. It was [the plaintiff] who resigned, taking the position that she had been constructively dismissed” (para 151).
The Court further wrote that “[the plaintiff’s] refusal to comply with the MVP was a repudiation of her contract of employment. [The company] did not accept that repudiation. Instead, it acted reasonably in putting her on an unpaid leave. She was not constructively dismissed from her position; she resigned. Any losses that she suffered from being put on unpaid leave were as a result of her personal choice not to follow [the company’s] reasonable MVP” (para 152).
If you have questions about implementing a vaccination policy or are dealing with employee refusals to follow a mandatory vaccination policy, the team at CCPartners would be happy to assist you. Click HERE to access CCPartners' “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law or reach out to any of our lawyers for assistance today!