A server at Calgary’s Glenmore Inn & Convention Centre who refused to get vaccinated and was placed on an unpaid leave of absence as a result was not constructively dismissed, the Alberta Court of Justice has ruled.
CH, a 57-year-old server employed since 2008 at Glenmore Inn, challenged her employer’s vaccination mandate. At the time, she was earning $15 hour, worked about 32 hours a week and made approximately $27,900 annually.
The policy, implemented in September 2021, required employees to be vaccinated as a response to the ongoing public health crisis. CH, who chose not to get vaccinated due to safety concerns, was subsequently placed on an unpaid leave of absence starting Oct. 4, 2021.
CH alleged that this action by her employer amounted to constructive dismissal — a situation where an employee is forced to resign due to the employer’s conduct — and sought damages equivalent to 13 months of pay in lieu of notice. She argued that the unpaid leave significantly altered her employment terms and that she had been effectively terminated.
Glenmore Inn Holdings Ltd., in response, maintained that CH had not been dismissed, either constructively or otherwise, but had resigned by not complying with the vaccination policy and failing to seek any accommodation under it. The company argued that its policy was a lawful and reasonable response to the COVID-19 pandemic, intended to ensure the safety of employees and customers.
Justice L.L. Burt, in his decision, applied the Potter test for constructive dismissal, examining whether the employer’s actions constituted a unilateral breach of the employment contract and if a reasonable person in the employee’s position would have felt the breach substantially altered an essential term of the contract.
The court found that the unpaid leave of absence, while without pay, was reasonable given the context of the pandemic and the clear conditions set for its conclusion. Additionally, the policy was not deemed a disciplinary measure but a public health necessity, aligning with statutory obligations under the Occupational Health and Safety Act to ensure the safety of employees and the public.
Justice Burt concluded that the policy, including the consequence of an unpaid leave of absence for non-compliance, was reasonable and justified. Therefore, her claim of constructive dismissal failed, and her subsequent actions, including seeking alternative employment and not responding to an offer to return to work, were interpreted as a resignation.
Costs were awarded to the employer for the “filing of pleadings and document disclosure, pre-trial conference, trial preparation, and the one-day trial, plus the filing fee and other reasonable disbursements.” Parties were asked to reach an agreement on costs.
For more information, see Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (CanLII)
