Alberta labour board revokes $11,000 in termination pay awarded to worker who quit job over COVID vaccination policy

A vial containing a vaccine for COVID-19. Photo: Worawoot Sukasem/Getty Images/Canva

The Alberta Labour Relations Board has revoked an order that a worker, who quit his job over his employer’s COVID-19 vaccination policy, was entitled to more than $11,000 in termination pay.

The worker, CD, was the service manager at Topco Oilsite Product’s location in Clairmont, Alta. He was hired on June 18, 2011.

In October 2022, an Order of Officer required Topco to compensate CD after he left the company. CD claimed he was constructively dismissed due to Topco’s vaccination policy, while Topco argued that CD resigned, thus negating the need for termination pay.

Vaccination policy

The case centered around Topco’s policy, introduced in September 2021, in response to the COVID-19 pandemic and subsequent public health measures. This policy required employees to either be vaccinated or undergo weekly testing at their own expense.

After being told of the policy, CD told his supervisor he didn’t want to talk about it. He further advised that his reasons for opposing the vaccine were similar to the reasons raised by other employees, and he also raised additional religious concerns — but never provided the particulars.

When CD did not comply with the policy, he was placed on a leave of absence and later resigned, citing the policy as the reason.

In a memo to CD on Sept., 20, 2021, the company said: “Please know Topco needs to ensure we have a safe workplace for all of our employees, customers and vendors. In light of the fact that you have chosen not to respect or exercise any of the options presented to you then at this time you do not meet the requirements of your position. Effective immediately you need to leave our premises until you can meet the requirements laid out in our policy.”

On Oct. 19, 2021, the company contacted CD and asked him to leave his keys and cellphone on the front steps of the house to it could collect them. He was told it was company practice to have employees return keys and company-issued devices when employees are absent.

Between Dec. 2, 2021, and Feb. 17, 2022, counsel for the parties exchanged a series of letters asserting and denying a constructive dismissal had taken place.

Resignation

On May 1, 2022, CD sent in his resignation letter. “This letter is to inform you that I am forced to resign my position as Service Center Manager for Topco Oilsite Products Ltd effective immediately. This involuntary resignation is the result of being placed on indefinite unpaid leave since September 20, 2021 as stated that I no longer meet the requirements of my position and had to vacate the premises immediately. I will not go into further detail on this matter as it has been legally documented in other forums as the management is aware.”

On May 2, 2022, CD began working for one of Topco’s competitors. On Oct. 13, 2022, an Order of Officer was issued directing Topco to pay CD $11,193.60 in termination pay and an officer fee of $1,119.36.

The ruling

The Alberta Labour Relations Board conducted a thorough review of the case, including testimonies from both parties and a review of 50 documents. The board concluded that Topco did not constructively dismiss CD and that he had indeed resigned from his position.

The board found that Topco’s vaccination policy was both reasonable and lawful, noting that it offered an alternative to vaccination and that the company had a responsibility to ensure a safe workplace.

“When (CD) refused to adhere to the vaccine policy or to pursue the alternative of testing, (Topco) was within its rights to place (him) on an unpaid leave of absence,” the Board said.

It was also noted that CD did not provide details of his religious objections to the policy, which could have been considered for accommodation.

There was no constructive dismissal in this case, it ruled. It also set aside the Order of Officer fee of $1,119.36 that was assessed.

For more information, see Topco Oilsite Products Ltd. v Davis, 2023 CanLII 115038 (AB LRB)

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