Oct 2022 Charity & NFP Law Update
Unpaid Leave for Non-Compliance with Vaccine Policy not Constructive Dismissal
The COVID-19 pandemic was certainly uncharted waters in many areas of law. One of the more contentious aspects of this period of time has been the nexus between employment rights and mandatory vaccine policies in the workplace. Employees and employers alike struggled to understand what their rights and obligations were, and in some cases, it has been left to the courts to determine what was acceptable at the time.
One such instance was Parmar v Tribe Management Inc. On September 26, 2022, the British Columbia Supreme Court determined that Tribe Management Inc.’s (“Tribe”) decision to place an unvaccinated employee on unpaid leave did not amount to constructive dismissal. The court classified the Plaintiff employee’s decision to not comply with the mandatory vaccination policy (“MVP”) as a “personal choice” and that it “was a repudiation of her contract of employment.”
The Plaintiff was a senior manager with over 19 years as an employee. She argued that her being placed on unpaid leave was constructive dismissal as it breached Tribe’s contractual obligation. The Defendant employer is a property management company. They argued that their actions were reasonable and “implicitly authorized by the terms of the employment contract.”
On October 5, 2021, Tribe rolled out its MVP, which required all employees to be “fully vaccinated” by November 24, 2021. Their policy allowed for medical or religious exemptions, none of which were invoked by the Plaintiff, despite her insistence that family members had experienced negative side effects related to the vaccine. Tribe did not terminate the employment of those who refused to comply with the MVP; rather, they simply put them on unpaid leave.
The Plaintiff requested that alternative arrangements, such as work from home and constant rapid testing be allowed for her. Tribe refused these requests, and put her on unpaid leave on November 25, 2021. The Plaintiff characterized the leave as “indefinite”, though the company communicated that they would review the situation after 3 months. After less than a month, the Plaintiff requested a return to work, barring which, she would allege constructive dismissal. Tribe refused this, but offered an indefinite unpaid leave and said the Plaintiff could return to work once she complied with the MVP. On January 26, 2022, the Plaintiff resigned from her position and filed a notice of civil claim.
The court noted that the employment contract in place demanded that all employees comply with workplace policies. The only rebuke to this would be if the polices were unlawful or unreasonable. The lawfulness of the MVP was not contested by the Plaintiff, only its reasonableness, who claimed that the lack of ability to work almost totally from home was unreasonable.
The court, after examining relevant jurisprudence, concluded that Tribe’s policy was reasonable, stating that the Plaintiff “refusal to comply with the MVP was a repudiation of her contract of employment. Tribe 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 Tribe’s reasonable MVP.”
While this is a B.C. decision and is not considered as a precedent outside of that province, this ruling is potentially significant for employers, in all fields, which may have similar situations and claims. As employers, charities and not-for-profits are subject to the same employment laws as commercial enterprises, and should take note of this case and the implications it could have regarding COVID-19 vaccination policies and dealing with non-compliant employees.