‘Irresistible force’ meets ‘immovable object’: Board sides with employer in vaccine dispute

A sign protesting the COVID vaccine. Photo: HR Law Canada/Canva

A stalemate between an Alberta worker who refused to get the COVID vaccine, and her employer that mandated the shot, has ended in favour of the company.

The Alberta Labour Relations Board described it as the “case of the irresistible force meeting the immovable object.”

It’s a ruling adding to the jurisprudence that while Canadians are free to not be vaccinated, they are not free of the consequences of that choice, the board said.

Worker initially awarded damages

In March 2022, the worker was awarded nearly $7,400 in termination pay in lieu of reasonable notice by an order of officer under the Employment Standards Code.

The employer, Country Living Furnishings in Calgary, appealed that ruling.

Background

Country Living Furnishings operates a retail furnishings store and interior design service business. The worker was a sales associate and design consultant who was hired in 2011.

In early September 2021, the worker was on a medical leave for reasons unrelated to COVID or the vaccine. On Sept. 10, the company wrote to her and asked her to call them about the COVID vaccine.

The company communicated to the worker that it was implementing new guidelines related to the ongoing pandemic. Primarily, it stated that unvaccinated workers would not be allowed to go into the homes of customers. They would also be required to wear N95 masks while in the store or the warehouse and required a negative test result once per week.

“I would like us to be respectful to one another by doing our part to see this pandemic come to an end,” it said. “I cannot risk the health of our customers nor can I risk the financial burden of having to close our store.”

Worker raises questions

The worker responded with what the board called a lengthy email. In it, she expressed appreciation for the company’s efforts to navigate the government mandates and acknowledged the need to wear a mask in public places to comply with the orders.

But she also raised questions about the effectiveness of masks, requiring tests for unvaccinated people and included extracts of information from the Justice Centre for Constitutional Freedom.

The company responded and said it would drop the testing rules for her.

“If you would like to return to work then you can do so on Saturday wearing a mask at all times,” it said. “I am not interested in reading or hearing any ‘misinformation’ regarding Covid. I hold my opinion of anti vaxxers and I will ask you to hold your opinions to yourself.”

The worker said she would comply with the company’s wishes on the mask front. At the time, she was the only employee who had not been vaccinated.

Evolving rules

On Sept. 15, the company sent the worker another note. “In light of today’s announcement, I think we need to speak again about returning back to work,” it said.

The announcement the company referred to was a declaration of a state of public health emergency by the Chief Medical Officer of Health for Alberta.

The company and the worker exchanged a series of texts:

Worker: Just please send me an email. I think it is better to write so there is no misunderstandings.

Company: Do you have plans to get the vaccine?

Worker: As I understand it, that information is considered private medical information which employees are not required to disclose.

Company: I see. That answers that then.

On Sept. 16, the worker asked for and received confirmation she was to work on Saturday, Sept. 18. From that day until Oct. 5, she worked as scheduled and work a mask at all times. Her boss was on vacation during this time.

Vaccine mandate implemented

When her boss returned from vacation, she was aware of vaccine mandates being implemented by governments and businesses. She was also fielding calls from customers and suppliers asking if her staff were all vaccinated.

The company decided to implement a vaccine requirement for staff, and the only unvaccinated person at this point was the worker in this case.

On Oct. 6, they met in a private area of the workplace. The company said she could no longer work at the store because she was unvaccinated.

“You mean I have to leave right now?” the worker asked. The response was yes, to which the worker said it would be a wrongful dismissal.

“Good luck with that,” her boss responded.

An email was sent to her stating she was being placed on “unpaid leave until you are vaccinated effective immediately. When you are vaccinated you are welcome to resume your employment.”

But the worker believed she had been terminated.

Further communications

On Oct. 27, the company reached out and asked if the worker was returning with her vaccination at the end of the 30-day leave.

The worker said she would be happy to return and could provide three things:

  • proof of immunity by blood test that showed a quantitative score of antibodies
  • letter of medical exemption from her doctor
  • letter of religious exemption.

This was the first time either a medical or religious exemption was mentioned by the worker. The company’s response: “That’s unfortunate. Our policy is vaccinated employees only.”

On Oct. 31, the worker asked for a reference letter. The company said it would provide one in exchange for a resignation letter.

That led to an email exchange with the worker stating she was ready to come back and did not resign.

“You have said that I must give you proof of Covid vaccination in order to work or else be fired,” the worker said. “Therefore, I have been fired so I cannot provide a letter of resignation.”

The employer responded with a denial she had been fired.

“You have been placed on leave so I can take care of the health of my employees and my customers by ensuring that the staff are vaccinated,” it said. “I will extend your leave so you have more time to get your vaccinations and return to work.”

Refusal to provide vaccination record

At this point, the employee dug in and said she would not be providing a vaccination record.

“Are you familiar with the term “constructive dismissal”?  You cannot say someone cannot come to work, give them zero hours and no pay, but say they are still employed and on an unpaid leave,” the worker said. “I will not be providing you with my vaccination record.  Now you must decide whether you are terminating my employment or I am permitted to return to work.”

She asked for her ROE on Nov. 8, and the employer issued it coded E for “quit.”

The board’s ruling

Here, the board made it’s immovable force and irresistible object comment.

“In the end, the employment relationship became a stalemate because the employer insisted the (worker) become vaccinated and the (worker) refused to be vaccinated,” it said. “It is true that the (worker) did not quit but it is equally true that she was not terminated.”

It noted that COVID vaccinations have been a polarizing issue in Canadian society, and the issue has generated considerable litigation.

But it also noted that courts have addressed the distinction between the right to choose not to be vaccinated and the consequences of that choice. The employer had the right to establish a vaccinate mandate, and the worker had the right to refuse to be vaccinated.

“Neither the (Employment Standards Code) nor the (employer) can remediate the economic consequences for the (worker),” it said.

It cited the ruling in Parmar v. Tribe Management, a 2022 British Columbia Supreme Court ruling. In the ruling, the court said vaccination polices during the pandemic were “reasonable.”

“They do not force an employee to be vaccinated,” it said. “What they do is force a choice between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing their income. Ms. Parmar made her choice based on what appears to have been speculative information about potential risks.”

The board overturned the ruling, and awarded the woman $87 for wages earned on the day she was sent home early, along with $5.22 in vacation pay and $100 for the Order of the Officer fee.

For more information, see Country Living Furnishings Inc. v Sellen, 2023 CanLII 6256 (AB ESA).

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