1 week Ago By [email protected] (Ed Canning)
Charlotte began working for a federal Crown corporation in 2011. Before the pandemic hit, she worked partly from home and partly from the office. On Sept.
22, 2021, all employees were advised they needed to be fully vaccinated by mid-November against the COVID virus. A few weeks later, the employer informed the employees that anyone not vaccinated by the deadline and not receiving an exemption would be put on an unpaid administrative leave. By two weeks before the deadline, Charlotte had not been vaccinated and she received a personalized email indicating she would be put on immediate leave if she did not do so.
Charlotte had a lawyer send a letter that claimed the unilateral policy was a fundamental and substantial breach of her employment agreement and could constitute a dismissal. The lawyer indicated, however, Charlotte was willing to work from home and submit to testing if she had to go into the office. The employer never responded and claimed not to have received that letter.
A few days later, Charlotte got another reminder the deadline for vaccination was looming. Charlotte did not get vaccinated and was put on leave. She never sought any sort of religious or disability-related exemption.
When she was put on leave, she was told that in the absence of her scheduling any vaccination appointments, her administrative leave status, whereby her job was being held open, might be reviewed. She was given the option to pay for her benefits coverage out of pocket. Her pay and pension contributions stopped.
Eight months later, Charlotte contacted the employer to inform them she had become fully vaccinated and wanted to come back to work. Ironically, the same day she was scheduled to return to work was the day the federal government dropped its mandatory vaccination policy. Within a few weeks of Charlotte’s administrative leave beginning, she had filed an unjust dismissal complaint with the Canada Labour Board, claiming she had been constructively dismissed as a result of the vaccination policy and the leave.
By the time this matter came before the board, she had been back at work for more than a year and a half. A constructive dismissal involves unilateral changes introduced by an employer resulting in a substantial change to the employment contract. Case law indicates any changes made by an employer must not be unreasonable, must be clear and unequivocal, come with fair warning and be consistently enforced.
The employer survived this test. Charlotte tried to make much of the fact her original employment contract from 10 years before did not contemplate a leave without pay. It did, however, have a provision, like most contracts do, indicating Charlotte would comply with the policies of the employer.
The adjudicator followed the reasoning of many cases that had been decided over the last few years which have held that mandatory vaccination policies were reasonable and justifiable. Ultimately, the arbitrator decided Charlotte had not been constructively dismissed and made it clear that would have been the decision even if she had not already returned to her position and continued her employment. This was really an attempt to get the employer to pay for the eight months of lost wages Charlotte suffered before she decided to get vaccinated.
When layoffs and terminations first started to occur following the introduction of mandatory vaccination policies, much press was given to the question of whether or not these were in fact terminations. There were a number of lawyers, not including me, who argued publicly that a layoff/leave or a termination as a result of somebody refusing to get vaccinated constituted a dismissal and entitlement to severance. Mostly, they turned out to be wrong in their predictions of where the courts would land.
There have been some cases that have found a termination, rather than a leave like Charlotte’s, was precipitous and unnecessary in specific cases. Usually that would happen where the employee was working entirely remotely. I have seen other cases, such as child-care workers, where refusal to get vaccinated was found to constitute a justified termination without entitlement to pay in lieu of notice/severance.
The smarter employers simply put people on an unpaid leave rather than completely severing the relationship. In most cases, those lawyers and employees who decided they were entitled to compensation were not successful..
