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Not Inviting Employee To Return After COVID Leave = Constructive Dismissal
1831760 Alberta Ltd. (Calgary Climbing Centre Hanger) v Jones, 2023 CanLII 76366 (AB ESA) is a decision of the Alberta Labour Relations Board (“ALRB”) from an appeal by an employer (“Employer”) of an Order granted under the Employment Standards Code of Alberta (the “Code”) for payment of termination pay to an employee (“Employee”). The ALRB considered whether a mandatory COVID-19 policy imposed by the Employer was a constructive dismissal, or alternatively, if the Employee voluntarily resigned and was therefore not entitled to termination pay under the Code.
- On July 19, 2021, pursuant to the COVID-19 pandemic and the Public Health Guidelines, the Employer imposed a mandatory policy requiring employees to be double vaccinated by September 1, 2021
- The Employee discussed with the Employer her objections to the use of vaccinations and objections to the employment policy
- On September 3, 2021 the Employer informed the Employee that after consideration, the vaccination policy remained in place and put the Employee on administrative leave
- In October, the Employee through legal counsel, wrote to the Employer alleging constructive dismissal. The Employer, through legal counsel, replied denying there was a constructive dismissal, that the suspension was non-disciplinary and temporary and asked if the Employee intended to resign
- On January 18, 2022 the Employee filed a complaint under the The Employee never responded to the Employer’s question regarding resignation
- In April 2022 many of the government-imposed restrictions were lifted and the Employer advised suspended employees that they can return to work. The Employer did not advise the Employee that she may return to work
- On August 31, 2022 the Employment Standards Officer held that the Employer was required to have advised the Employee she could return to work, and that by not doing so the Employee was constructively dismissed and termination pay was awarded. That decision was appealed by the Employer, and that appeal is what is summarized here.
Analysis / Conclusion
The ALRB relied on the Supreme Court of Canada decision in Potter v. New Brunswick Legal Aid Services Commission para. 31 to 42 and 109 to 111, to assess both the test for constructive dismissal as well as the analysis of whether an employee resigned as opposed to a constructive dismissal.
The ALRB confirmed the onus is on an employee to prove constructive dismissal. The ALRB confirmed the Employee’s express allegation of a constructive dismissal to the Employer was not a resignation in these circumstances. The Employee was already on administrative leave, and unlike other cases, she did not walk out or fail to attend work. Overall, there was no evidence to support an intention to resign.
The ALRB further concluded that the imposition of a mandatory vaccination policy did not amount to a constructive dismissal in the circumstances. The Employer is under obligation to protect the health and safety of the coworkers and the public. As such, the policy was reasonable and did not evince an intention to no longer be bound by the employment contract.
Ultimately, the ALRB held the Employee was constructively dismissed when the Employer failed to notify the Employee she could return to work after the restrictions had lifted. An employer is obligated to seek clarification of the employee’s intention in the face of an ambiguous resignation. In this case the Employee did not respond to the inquiry by the Employer about her intention to resign, leaving the question of resignation ambiguous. Further, the Employer failed to justify the Employee’s continued suspension, while other employees were notified they could return to work.
As a first note, this is a decision of the Alberta Labour Relations Board of an appeal of an Employment Standards Officer. The precedential value of this decision is limited to the Employment Standards in Alberta and is useful to individuals and businesses using the employment standards complaint process.
Second, the decision regarding resignation versus a constructive dismissal further supports the highly contextual nature of the analysis. In this case, the Employee’s failure to reply to the Employer’s question regarding resignation was interpreted in favour of the employee. But that interpretation could also have been considered an intention to resign. The lack of any evidence suggesting resignation permitted the ALRB to draw an inference there was no intention to resign. It is also significant that in this case, the employee was already on a suspension and not working, which is quite different than a situation where an employee is at the workplace, alleges a constructive dismissal, then storms out without further communication; the inference in the latter situation would support an intention to resign.
Bow River Law provides these regular legal blog articles for the purposes of legal news, 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.
Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.