Worker remained employee; reasonable for employer to follow public health and safety guidance
A British Columbia court has dismissed a worker’s wrongful dismissal claim stemming from his placement on unpaid leave after he refused to comply with his employer’s COVID-19 vaccination policy.
The worker was hired for an accounting-type role by the City of Prince George, BC, in 2009. In 2014, he became a strategic financial analyst involving in financial planning, budgets, capital expenditures, audits, and financial statements. He worked in City Hall but he didn’t have to interact with the public.
When the COVID-19 pandemic hit in 2020, the city implemented a policy allowing remote work on a part-time basis for certain employees. However, the worker continued to work full-time in his office.
In the fall of 2021, with COVID-19 vaccinations available to the general public, the City set out a vaccination policy under its workplace wellness policy, which authorized the City to establish workplace health and safety procedures. All City employees were informed on Nov. 2 that they would have to be vaccinated by Dec. 20, with the only exceptions being for a protected ground under the province’s Human Rights Code.
A week later, the City set out a document stating that vaccines were proven safe and effective, approved by Health Canada, and was the best protection against contracting and transmitting infection and experiencing severe illness from COVID-19. In addition, the health region in which Prince George was located had particularly high infection rates compared to other parts of the province.
Unpaid leave for non-compliance
Employees who didn’t comply would be ineligible to attend work, so they would be placed on unpaid leave for at least 30 days. Anyone place on unpaid leave would be returned to work if they provided proof of vaccination, while those who didn’t would be “subject to employment consequences up to and including termination of employment.” The deadlin was later extended to Jan. 14, 2022.
The worker wasn’t comfortable receiving the vaccine, so he remained without the shot. The City informed him on Dec. 8 that he would be placed on unpaid leave if he didn’t provide poof of vaccination by the deadline, and employees who didn’t co-operate with the City administering the policy would face “disciplinary consequences up to and including termination.”
The worker told the city on Dec. 18 that he would not comply with the policy and he was willing to work from home full-time or do periodic testing instead. The City was clear that there would be no exceptions to the policy other than for human rights reasons.
The worker worked up to Jan. 14, 2022, when he was placed on unpaid leave while his benefits continued. Twenty-three other unvaccinated City employees were also placed on unpaid leave.
The worker’s lawyer sent a letter to the City, to which the City responded that the worker would be returned to work if he submitted proof of vaccination and his benefits continued while he was on leave, as he was still an employee. The leave was to give him time to consider whether he would comply with the vaccination policy, and he had a choice to resign or comply and return to work.
Constructive dismissal claim
On Feb. 17, the worker’s lawyer informed the City that the worker considered himself to be constructively dismissed. However, the City continued to treat the worker as an employee on unpaid leave and continued his benefits until April 2022, when the worker filed a wrongful dismissal action, arguing that the terms of his employment contract didn’t include a vaccination requirement or the right of the city to place him on unpaid leave. Alternatively, he claimed that he was forced to resign following the communication suggesting his choices were to comply with the policy or resign.
When the city suspended the vaccination policy, all the employees still on unpaid leave were offered a return to work.
The court found that the worker’s unpaid leave was administrative, not disciplinary, as the City told the worker that it was designed to give him time to reconsider his vaccination stance. The court accepted that the City's policy encouraged education on vaccine safety and the leave wasn’t punitive.
The court referred to Parmar v. Tribe Management Inc., 2022 BCSC 1675, where a similar policy and unpaid leave was found to be reasonable. Although the worker’s contract lacked an express clause on compliance with evolving workplace policies, it included an implied term requiring adherence to reasonable health and safety measures introduced by the City under the workplace wellness policy, the court said, adding that such an implied term was necessary to give effect to the employment relationship during the pandemic.
Health and safety
The court also found that the City had legitimate business reasons for the policy, citing public health challenges specific to the region with higher COVID-19 transmission rates, and the City's obligations under occupational health and safety legislation. The policy was consistent with provincial recommendations and mirrored those of other large employers, said the court.
The court determined that the unpaid leave, with continued benefits and the availability of reinstatement upon vaccination, to be proportionate, noting that the policy didn’t force the worker to choose between his job and receiving the vaccine – he would remain an employee while unvaccinated - but “forced a choice between getting vaccinated and continuing to earn income, or remaining unvaccinated and losing income.”
In addition, there was no indication that termination would be a consequence of non-compliance, as even though the policy referred to “up to and including termination,” the only employment consequence any City employee suffered for non-compliance was an unpaid leave, the court said.
The court dismissed the worker’s alternative claim that he was forced to resign, citing insufficient evidence and a lack of reference to it in the initial pleadings. The City maintained the worker’s employment status throughout his leave and only processed his departure after he initiated legal action against it, so there was no evidence that it repudiated the employment contract, the court said.
The court ruled that the City's actions didn’t constitute constructive dismissal and dismissed the worker’s claim.
