Atlantic Coated Papers wins appeal in constructive dismissal case involving unvaccinated worker

A photo from a vaccine protest in London, England. Photo: Sarah Le Guen/Unsplash

An Ontario company has won its appeal of an employment standards officer’s order that awarded more than $23,000 in termination and severance to a worker who was constructively dismissed after refusing to be vaccinated during the pandemic.

The case involved NC, an executive assistant with almost eight years of service at Atlantic Coated Papers. The company implemented a mandatory COVID-19 vaccination policy on Oct.12, 2021, with a compliance deadline of Dec. 6, 2021 — or about eight weeks’ notice to comply.

Employees were given the option to either get vaccinated or provide proof of a valid exemption.

When NC expressed her discomfort with both options, the company offered her a work-from-home arrangement as an independent contractor. This would involve her resigning her employment, but would allow her to work from home without the need to attend the office.

However, NC declined this offer, insisting she could continue her duties as an employee and that her work at the office was not considered high risk.

During the course of the discussions, NC mentioned that she had an autoimmune disorder but stated she was unwilling to take the vaccine despite medical advice stating it was safe for individuals with such conditions. No medical documentation was provided to the company to support her claim.

Eventually, on Nov. 15, 2021, NC sent an email to the company titled “resignation,” stating that her last day of work would be Nov. 26, 2021. She later filed an application with the Ontario Labour Relations Board, alleging constructive dismissal, and was awarded notice and severance by an employment standards officer.

The total award was $23,579.47, which represented termination pay, severance pay and a 10% administration fee.

The employer’s appeal

The company, in its application for review, argued it had provided adequate notice to NC regarding the policy change and termination. They noted that more than seven weeks of working notice had been given to comply with the policy, fulfilling their obligations under Ontario’s Employment Standards Act. The company also contended that NC did not qualify for severance as she did not provide the required 14 days of written notice before resigning. (She gave 10 days.)

The worker countered that the vaccination policy was unreasonable. Its intent was to obtain 100% compliance, she said, and no health and safety risk was created if she continued to work from the office.

The ruling

The Ontario Labour Relations Board said that, when she refused the offer to resign and become a work-from-home independent contractor, she had been constructively dismissed.

There was not dispute that, as an eight-year employee at a large company, NC would be entitled to both notice and severance under employment standards legislation.

But since the company gave more than seven week’s notice of the policy change and deadline, that amounted to working notice and meant NC was not entitled to further payment in lieu of notice.

Additionally, since she provided only 10 days of notice instead of the required 14 days, she did not qualify for severance under the act. “This, on its own, disentitles her to any severance payment,” it said.

Based on these findings, the Board granted the company’s appeal, rescinding the order to pay in the amount of $23,579.47.

For more information, see Atlantic Coated Papers Ltd./Papiers Couches Atlantic Ltee v Nathalie Cote, 2023 CanLII 42158 (ON LRB)

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