Worker refused vaccine testing alternative; resigned after months on unpaid leave
Placing a worker on an unpaid leave of absence for refusing to comply with a vaccination policy was not constructive dismissal, the Alberta Labour Relations Board has ruled.
Topco Oilsite Products is a manufacturer, seller, and servicer of oilfield products with locations in four Alberta cities. In June 2011, Topco hired the worker to be the service centre manager at its Clairemont, Alta., location.
In late summer 2021, a surge in COVID-19 cases led to public health measures including mandatory vaccines for all employees whose physical presence was necessary at the workplace. At the same time, Topco was receiving inquiries from customers about what steps it was taking to stop the transmission of COVID-19.
Topco drafted a vaccine policy that would provide a $100 gift card to all employees that were fully vaccinated by Sept. 20. In addition, employees who chose not to get vaccinated would be required to be tested weekly and provide the results to their managers every Monday before starting work. The tests were to be taken on the employees’ own time and at their own expense.
Worker opposed vaccine mandate
The policy was presented to staff at the Clairmont location on Sept. 16 and a meeting was held to discuss it. The worker didn’t attend the meeting, so the district manager spoke directly with him. However, the worker didn’t want to talk about it and said that his reasons for opposing the vaccine were similar to other employees plus religious concerns, although he didn’t specify.
The policy was officially implemented on Sept. 17. Two days later, the district manager emailed the worker and another employee to say that if they remained unvaccinated and didn’t provide a negative test, they should stay home from work. They had a choice of using vacation days or lieu time, but Topco would not pay them if they stayed home.
On Sept. 20, the worker replied that there were changes to the government’s exemption program and he wasn’t provided with much notice. He also said that requiring employees to cover the cost of testing was undue hardship and the policy didn’t consider protected human rights grounds. He maintained that accommodations should be discussed and he would be consulting employment standards, the Alberta Human Rights Commission, and a lawyer.
That same day, the worker reported for work and didn’t communicate with management. Once they learned that he was there, the district manager sent him a memo saying that Topco needed to ensure a safe workplace, so he needed to leave the premises immediately until he could meet the requirements of the policy. Upon receiving the memo, the worker left.
Benefits continued during unpaid leave
On Oct. 19, the district manager asked the worker to leave his keys and work cellphone on the front steps of his house so they could be picked up. The company’s normal practice was to do this for employees who were absent. The worker wasn’t being paid, but his health and welfare benefits coverage continued. His duties were covered by other employees and Topco didn’t hire any replacement.
Over the next few months, the company’s legal counsel had several exchanges with the worker’s legal counsel over allegations of constructive dismissal. During this time, the provincial government continued to advise that vaccines were the best way to prevent the spread of COVID-19 and it implemented measures to assist employees in getting vaccinated and taking time off work to do it.
Topco’s vaccine policy remained in effect until June 2022. In April, the company refused to hire a job candidate who had not been vaccinated.
On May 1, 2022, the worker sent a resignation letter that stating his “involuntary resignation is the result of being placed on indefinite unpaid leave since Sept. 20, 201 as stated that I longer meet the requirements of my positions and had to vacate the premises immediately.
Constructive dismissal complaint
The worker filed an employment standards complaint alleging constructive dismissal from being placed on an unpaid leave of absence and Topco’s refusal to accommodate him. An employment standards officer investigated and ordered Topco to pay the worker more than $11,000 in termination pay plus a 10-per-cent fee. Topco appealed the order to the Alberta Labour Relations Board.
The board found that, in the context of the pandemic when other organizations were establishing mandatory vaccine policies and Topco had obligations under the Alberta Occupational Health and Safety Act to create a safe workplace, the company had a legitimate reason for implementing the policy. In addition, the policy included an alternative to vaccines and the worker never provided any particulars as to his religious objections, the board said in finding that the policy was reasonable and lawful.
“[Topco] had a health and safety responsibility to protect other workers and members of the public who attended at its premises,” said the board. “When the [worker] refused to adhere to the vaccine policy or to pursue the alternative of testing, [Topco] was within its rights to place the [worker] on an unpaid leave of absence.”
The board also found that Topco continued to consider the worker an employee – the worker remained on the payroll and continued to receive benefits until he submitted his letter of resignation. There was no conduct by Topco that led to constructive dismissal, said the board.
The board determined that Topco was entitled to place the worker on an unpaid leave of absence for not complying with the reasonable policy, which it maintained consistently for all employees until it retracted it in June 2022. The worker resigned from his employment because of the leave of absence and there was no constructive dismissal, said the board in revoking the order to pay termination pay. See Topco Oilsite Products Ltd. v. Davis, 2023 CanLII 115038.
