Unpaid Leave for Unvaccinated Office Worker Didn’t Amount to Constructive Dismissal: BCSC

An employer’s decision to place an office worker on unpaid leave for failing to comply with a mandatory vaccination policy did not amount to constructive dismissal, according to a recent decision out of British Columbia.

On September 26, 2022, the British Columbia Supreme Court (BCSC) rendered its decision in Parmar v. Tribe Management Inc., a case involving an office worker who was placed on unpaid leave for refusing to comply with a mandatory vaccination policy (MVP). After the employee resigned from her position, she sued her employer for constructive dismissal.

Notably, the judge in this case took judicial notice of the seriousness of COVID-19 and the efficacy of vaccines – meaning that these facts are so well-known they cannot reasonably be doubted and do not require specific evidence before the court to substantiate.

Policy Implemented in November 2021

The employer in this case, Tribe Management, a Vancouver-based property manager, advised its employees in October 2021 that it would implement an MVP on November 21, 2021.

The MVP allowed for medical and religious exemptions. It also gave unvaccinated employees time to comply with the policy. Employees who did not have a medical or religious exemption and refused to comply with the policy were told they would be placed on unpaid leave, but they would not be dismissed from their jobs or disciplined.

Employee Resigned, Alleging Constructive Dismissal

The plaintiff, Deepk Parmar, was an accountant who chose not to get vaccinated for fear of negative side effects. She did not seek exemption from the MVP on medical or religious grounds.

After failing to comply with the MVP, Parmar was advised that she would be placed on a three-month period of unpaid leave beginning December 1, 2021. The unpaid leave was subject to review and during that time Parmar would continue to receive certain employee benefits.

On January 25, 2022, her leave of absence was extended for an indefinite period of time, but no steps were taken to replace her. On the contrary, Tribe was hoping she would become vaccinated and return to work. The next day, however, she resigned from her position and filed a statement of claim alleging constructive dismissal.

In her claim, Parmar did not allege that Tribe’s MVP was unlawful, but that it was unreasonable for not allowing vaccination exemptions for employees who could work remotely all or most of the time.

Policy Was a “Reasonable and Lawful Response”: BCSC

In determining the reasonableness of Tribe Management’s MVP, the BCSC noted that courts “are entitled to take judicial notice of facts that are so notorious as not to require proof.”

The Court took judicial notice of the fact that “COVID-19 is a potentially deadly virus that is easily transmitted” and that vaccines are an effective method of limiting the spread of the virus. Further, while Parmar was able to do most of her job remotely, she was required to work from the office occasionally.

The Court found that Tribe’s MVP was a “reasonable and lawful response” to the pandemic that also ensured employees who refused vaccination would not lose their jobs, but instead be placed on leave. If the pandemic subsided, Parmar would have returned to work, but she chose to resign instead.

“She was not constructively dismissed from her position; she resigned,” the Court stated in its ruling. “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.”

The Court also rejected the notion that vaccination policies force unwilling employees to get vaccinated: “They do not force an employee to be vaccinated. What they do force is a choice between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing their income.”

Key Takeaways for Employers

The fact that the judge in this case took judicial notice of the seriousness of COVID-19 and the efficacy of vaccines is an encouraging sign for employers that implemented MVPs during the pandemic. It is also notable that the MVP was found reasonable even though it was not implemented in a health care setting.

While this is an encouraging decision for employers, it must be kept in mind that the employer in this case did not discipline, dismiss or replace the employee for failing to comply. Other labour decisions have found mandatory vaccination policies to be unenforceable, so it is clear this is not settled law. The everchanging landscape of COVID-19 will likely continue to result in decisions largely driven by the specific circumstances at issue.

We’ll be discussing recent case law and other topics for employers at upcoming seminars in Winnipeg, Calgary and Edmonton this fall. Visit our events page to learn more and reserve your spot today.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.