Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (Burt, J) is a recent Alberta Court of Justice (“ABCJ”) decision whereby the Plaintiff Employee argued they were constructively dismissed when the Defendant Employer implemented a Covid 19 vaccination policy. The ABCJ was required to determine whether the policy introduced by the Employer was reasonable response to the Covid-19 pandemic.
This case is important because there are only a few decisions in Alberta dealing with the interaction between these policies and constructive dismissal.
Facts
The following are the pertinent facts of the ABCJ’s decision:
- The Plaintiff Employee, Constance Van Hee (the “Employee”) was a 57-year-old server for the Defendant Employer, the Glenmore Inn Holding Ltd. (the “Employer”) for approximately 13 years
- In mid- September 2021, the Employer developed a policy that required employees to obtain the Covid-19 vaccination by specific dates. Failure to do so would result in employees being put on unpaid leave of absence until they obtained the required vaccination or the government’s health mandates changed (the “Policy”)
- The Policy contained an exemption and accommodation provision
- Prior to being put on unpaid leave of absence, the Employee and Employer had two meetings regarding the Policy and the consequences for failing to comply with the Policy. During the two meetings, the Employee maintained her position that she would not be getting vaccinated. The Employer advised the Employee that failure to get vaccinated would result in her being put on an unpaid leave of absence
- On October 4, 2021, the Employee was advised in writing that she was being placed on an unpaid leave of absence, effective immediately, as she failed to comply with the Policy
- The Employee testified that she believed her employment had been terminated, as of October 4, 2021
- On November 15, 2021, the Employee’s counsel provided the Employer with an unfiled Civil Claim
- On January 21, 2022, the Civil Claim was filed and served on the Employer, whereby the Employee alleged that she was constructively dismissed
- The Employee testified that they were aware of the Policy and its terms at all material times and that she understood the consequences of failing to comply with the Policy
Analysis / Conclusion
In determining whether the Employee was constructively dismissed, the ABCJ was required to apply the following two-part test set out in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (CanLII), [2015] 1 SCR 500 :
- Did the Employer impose a unilateral change that breached the contract?; and
- Would a reasonable person in the Employee’s position have felt as though the breach substantially altered an essential term of the contract.
The main issue before the ABCJ was whether the suspension was reasonable and justifiable response to the Covid-19 Pandemic. In doing so, the court was required to examine the following factors:
- The duration of the suspension;
- Whether it was a paid suspension; and
- Whether the employer acted in good faith.
The Court came to the following conclusion:
- The duration of the suspension was reasonable, as the Employee knew at all material times when the suspension would end, either when she obtained the vaccine or when the public health guidelines changed;
- The unpaid leave of absence was reasonable, as the Employee made the voluntary choice to not comply with the Policy; and
- The Policy was made in good faith. Despite the Employer not being subject to any government or health authority mandate at the time, the Occupational Health and Safety Act, imposed a statutory obligation on the Employer to take reasonable steps to protect the health and safety of the public and its employees.
In light of the above, the Employee’s constructive dismissal claim failed, as the ABCJ determined that the Policy was reasonable and justifiable. Additionally, the Policy was not a unilateral act by the Employer that breached the contract.
Provided the ABCJ determined that the Employee resigned and was not constructively dismissed, she was not entitled to pay in lieu of notice.
My Take
The determination of this case on the face of it is a bit surprising, as generally the Courts are willing to determine that an employe has been constructively dismissed when they are suspended without pay or laid off, without prior consent provided.
However, taking a deeper look at the facts surrounding Van Hee, the Employee at all material times was aware of not only the terms of the Policy, but the impact it would have on her employment moving forward. Moreover, the decision is parallel to prior court decisions, containing similar facts, such as Benke v Loblaw Companies Limited, 2022 ABQB 461 and Parmar v Tribe Management Inc, 2022 BCSC 1675.
At the onset of the Covid-19, many lawyers and the public, wondered how the courts would handle various steps taken by Employer’s to combat the worldwide pandemic. The time is now upon us, as the courts begin to rule on many unanswered questions with respect to both employers and employees’ conduct during the Pandemic. It will be interesting to see which way further decisions go.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.
