Canada: "Lawful And Reasonable" Enforcement Of Mandatory Vaccine Policy Is Not Constructive Dismissal, Court Rules

The British Columbia Supreme Court recently answered the controversial question of whether an employer's enforcement of a mandatory vaccination policy can be considered constructive dismissal. In Parmar v. Tribe Management Inc., 2022 BCSC 1675, the Court held that the Plaintiff employee was not constructively dismissed when they were placed on an unpaid leave of absence due to their refusal to comply with the company's mandatory vaccination policy (the "Policy"). This decision was the first of its kind to address enforcement of mandatory vaccination policies in the context of civil litigation.

Background

A property management firm employed the Plaintiff for nearly 20 years before the onset of the COVID-19 pandemic. In response to the pandemic, many provinces entered into states of emergencies and a nation-wide campaign for vaccination was put in place. Many companies instituted mandatory vaccination policies to align with the provincial public health directives. In response to British Columbia's state of emergency, the available Public Health data, and the Prime Minister's reassurance that the federal government would do everything they could to protect companies who instituted these policies, the property management firm decided to implement a mandatory vaccination policy. Based on the information available at the time, the company's Vice President of Human Resources believed that the decision to implement a mandatory vaccination policy was reasonable given the health concerns of employees and clients. The company dealt with housing, which was deemed essential, and often had to dispatch its employees to work sites to interact with customers..

On October 5, 2021, the mandatory vaccination policy was sent to all employees. The Policy required that employees be vaccinated by November 24, 2021. With the exception of the Plaintiff and one other person, all of the company's remaining employees (more than 200) complied with the policy.

The Plaintiff objected to the vaccination for personal reasons and alleged there were potential risks and side effects associated with vaccination. The policy implemented by the company allowed exemptions for medical or religious reasons, but the Plaintiff did not rely on either of those grounds. The company placed the Plaintiff and the one other person who did not comply with the policy on an unpaid leave of absence.

Constructive Dismissal

The Plaintiff filed a legal action alleging that they were constructively dismissed. They argued that the policy was unreasonable because it did not make accommodations for employees who were able to work from home. The Plaintiff argued that the company breached its contractual obligations and as a result, that they were entitled to treat the working relationship as if it had ended. The Court disagreed and found that the Plaintiff had resigned. The Court made clear that even though "it is extraordinary for an employer to enact a workplace policy that impacts bodily integrity" the company's mandatory vaccination policy was reasonable given the "extraordinary health challenges posed" by the pandemic (at para 154).

The court surveyed the current law on constructive dismissal and reaffirmed the New Brunswick case of Potter v. New Brunswick Legal Aid Services Commission (2015 SCC 10), which stated that there are (2) branches to the test for constructive dismissal. Firstly, it must be established, on an objective basis, that an implied contract term has been unilaterally changed. If a breach of contract can be determined, the court then considers whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract had been substantially changed. In each case, the inquiry is fact specific. In Parmar, the court had to determine whether the imposition of an unpaid leave of absence constituted a breach of the employment contract.

Mandatory Vaccination Policies

Courts have taken judicial notice of the fact that COVID-19 is a deadly virus that is easily transmissible. In considering whether the mandatory vaccination policy was appropriate, the standard is not perfection – but rather reasonableness. The Court held that the company's policy 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" (at para 134).

The Decision

It was clear that the company wanted to continue its employment relationship with the Plaintiff. However, it was the Plaintiff who resigned – taking the position that they had been constructively dismissed. The Court stated that the policy did not force the employees to be vaccinated. Rather, the policy "forced a choice between getting vaccinated, and continuing to earn an income, or remain unvaccinated, and losing their income" (at para 154). The Plaintiff's claim for constructive dismissal was dismissed.

This decision will ease the minds of companies who implemented similar policies in line with public health directives to help combat the spread of COVID-19 and maintain the health and safety of their employees and clients. While each inquiry is fact-specific and would require an independent assessment of whether the decision for a similar policy was reasonable, this decision is likely indicative of a trend in similar decisions upholding the reasonableness of such policies.

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