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Employee Refusing Mask Put on Leave = Not Constructive Dismissal
Benke v Loblaw Companies Limited, 2022 ABQB 461 (Feasby, J) is a new Alberta Court of Queen’s Bench decision where an employee who was placed on an unpaid leave for refusing to wear a mask at work resigned and sued his employer for constructive dismissal. His claim was unsuccessful.
This case is important because there are not many cases on what employers’ and employees’ rights and obligations are surrounding unpaid leaves in the context of the COVID pandemic.
Below are the pertinent facts found by the Alberta Court of Queen’s Bench:
- The employee worked for Loblaws, and his job duties required him to be physically present in its grocery stores sometimes
- At the start of the COVID-19 pandemic in March of 2020, Loblaws directed employees such as the plaintiff to cease store visits until further notice
- In July, 2020, the City of Calgary passed a bylaw requiring everyone to wear masks indoors
- In turn, the plaintiff obtained a doctors’ note which stated that he was not required to wear a mask, “due to illness.” Loblaws did not challenge this initially, and allowed him to work in stores without a mask
- In late August, 2020, Loblaws rolled out a mandatory mask policy for all employees and customers, subject to valid medical exemptions
- A month or so later, the plaintiff had a conference call with human resources where the mask mandate was discussed, and the plaintiff was asked to have his doctor fill out a form which indicated that the exemption was to accommodate disability. The plaintiff returned the form from his doctor, but it did not clearly indicate that the exemption was related to disability
- An occupational health nurse followed up with the plaintiff, who admitted that the exemption was “not medical”. NOTE that this was one of the only disputed pieces of evidence: the plaintiff denied saying this, but the judge found as a fact that he had said it
- The plaintiff was placed on unpaid leave shortly after that meeting with the nurse
- The plaintiff returned his work vehicle and secured alternative employment sometime prior to the summary trial
- The plaintiff never actually explicitly resigned
- The plaintiff sued Loblaws for constructive dismissal
- The matter proceeded by summary trial
Analysis / Conclusion
Justice Feasby found that the plaintiff had not been constructively dismissed, because the employer had imposed a policy and the plaintiff’s voluntarily choice not to abide by that policy was the reason he was not allowed to work, and thus, be paid:
 Mr. Benke was put on unpaid leave because he would not perform an essential part of his duties as a Customer Experience Specialist – Produce. Specifically, he would not visit stores because he was required to wear a mask in accordance with the Mask Bylaw and Mask Policy. Mr. Benke’s situation is analogous to the casino worker in Filice without a gaming license or a doctor who is suspended for refusing to wash her hands prior to surgery contrary to a hospital policy. To perform his duties, Mr. Benke was required to comply with both a legal requirement, a municipal bylaw, and an employer policy but he refused to do so.
 Loblaw’s imposition of the Mask Policy was not a substantial change and did not breach the employment agreement. Mr. Benke’s job responsibilities did not change; the only thing that was different was that he had to wear a mask by reason of the Mask Bylaw and Mask Policy. The Mask Policy, though imposed by Loblaw, was not a substantial change and it was co-extensive with legal requirements imposed by municipalities (ie. the Mask Bylaw) and public health authorities. Similar mask policies prompted by the COVID-19 pandemic have been found to be reasonable by other decision-makers: see, for example, Dickson v Costco Wholesale Canada Ltd, 2022 AHRC 40 at para 29.
 The unpaid leave was a substantial change to Mr. Benke’s employment relationship, but it was not a breach of the employment agreement. The essence of the employment bargain is that the employee will work and the employer will pay. Given that Mr. Benke was not working by reason of a voluntary choice that he made, a choice not to comply with the Mask Policy and Mask Bylaw, it was reasonable for Loblaw to not pay him. Though it is not necessary, I conclude that a reasonable employee in Mr. Benke’s shoes would not have felt in the circumstances that an unpaid leave as a consequence of failing to abide by the Mask Policy and Mask Bylaw was a substantial alteration of an essential term of the employment contract.
The Alberta Court of Queen’s Bench went on to find that the plaintiff had voluntarily resigned from his employment with his conduct, despite not doing so explicitly:
 Counsel for Loblaw says that, in the alternative, Mr. Benke resigned from his position. Counsel for Loblaw submits that Mr. Benke’s resignation may be inferred from his actions, including his return of the company vehicle in March 2021, making a human rights complaint, and commencing this action. […]
 Mr. Benke did not seek reinstatement in this action. In the meantime, he has also obtained full-time employment with a different employer. Despite Loblaw continuing to show Mr. Benke in their records as being on unpaid leave, there can be no doubt that he has resigned even if he did not explicitly communicate that to Loblaw.
The overall result in this case was not surprising, given the finding of fact by the judge that the plaintiff told the nurse his exemption request was “not medical”. If the judge had found differently or if the plaintiff would have proven he had some serious medical condition requiring a mask exemption, it may have affected the outcome of this case.
One interesting element from this case is the finding by the judge that the plaintiff had resigned his employment, despite not doing so explicitly. Most cases have found that a termination of employment or resignation needs to be explicit (or unequivocal), and only in the clearest of cases would the conduct of the parties indicate an implicit termination or resignation. The finding of resignation makes sense for practical reasons in this case – he had already taken up alternative employment – but it may end up being used by employers attempting to establish implied resignations in other cases as a defense to wrongful dismissal.
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.
Joel Fairbrother is a knowledgeable, skilled and experienced lawyer handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.