'It gives employers and their counsel a great roadmap now on what to expect in future litigation'
“It's an incredibly important and welcome — to be quite frank — decision for really any employer in the country who implemented a mandatory vaccination policy and has since been grappling with how to address non-compliance.”
So says Danika Winkel, lawyer at Hicks Morley in Toronto, in discussing a recent case out of British Columbia.
The Sept. 26 decision involved a company’s mandatory vaccine policy, and an employee put on unpaid leave for failing to comply.
‘Clear directive’
Although there have been a number of arbitral decisions, employers of non-unionized workplaces have been left to wonder how the civil court system might grapple with similar issues, says Winkel.
“The decision represents the very first clear directive from a court that the implementation of a mandatory vaccination policy and the removal of non-compliant employees from the workplace on that basis is reasonable — and that choice doesn't constitute a constructive dismissal,” she says.
“Certainly, it gives employers and their counsel a great roadmap now on what to expect in future litigation and the like.”
It's the first time that courts have considered the question in the context of an alleged constructive dismissal, says Cameron Wardell, partner at Mathews, Dinsdale & Clark in Vancouver.
Barring an appeal, “this decision is going to be very, very influential on how subsequent vaccination policy decisions are dealt with,” he says.
“It is nice to see this common sense approach to the reality of what everyone went through,” he says, adding it’s “a happy result for employers who took a drastic step, but I think a reasonable one, in the circumstances.”
However, the Parmar case doesn’t involve an actual dismissal, says Wardell, so questions still remain about employees who have been fired for not complying with a vaccination policy outside of the non-union context.
Long-time, valued employee
Deepk Parmar began working for Gateway Property Management in 2003 as an executive assistant and was regularly promoted until she occupied a senior management position as controller, client accounting, at Tribe Management after an acquisition.
Based in Vancouver, Tribe operates regional offices through British Columbia, with satellite offices in Alberta and Ontario. After acquiring Gateway, the company had about 220 employees and provided services to units that housed roughly 100,000 residents.
Parmar managed an accounting staff of roughly 20 people and her annual salary was $100,000.
In March 2020, B.C. declared a provincial state of emergency in respect of the COVID-19 pandemic. The organization was recognized as providing “essential services” in the province, and many employees — 40 per cent — were required in the office, because of a large dependence on paper files, poor electronic records and a lack of equipment. Parmar was able to work remotely sometimes.
By Sept. 1, 2021, 84 per cent of the staff were vaccinated and on Oct. 5, 2021, Tribe implemented a mandatory vaccination policy (MVP) with a deadline of Nov. 24, 2021.
All employees complied except for Parmar and one other. Parmar said she was not an anti-vaxxer but she had reviewed the literature and news about the efficacy and potential risks of the available vaccines and some family members experienced severe health complications following their doses.
She proposed various alternatives, such as: working exclusively from home, or in a hybrid arrangement, with strictly controlled in-person office visits; and undergoing rapid testing. The company did not agree.
On Nov. 25, she was told she would be put on unpaid leave from Dec. 1 to Feb. 28, 2022 because she did not comply with the MVP. She would continue to receive benefits.
After communications back and forth with the employer, Parma sent an email on Jan. 26 advising that she was resigning and considered herself constructively dismissed. She contended that Tribe fundamentally breached its contractual obligations, so she could treat the employment relationship as having ended.
B.C. Supreme Court decision
Tribe said that the MVP was a reasonable and lawful response to the uncertainty of the COVID-19 pandemic and was implicitly authorized by the terms of the employment contract. Parmar argued that it was unreasonable as it did not make an exception for employees who were able to work from home.
“The assessment of the reasonableness of Tribe’s MVP must be considered based on the state of knowledge about COVID-19 at the time it was implemented,” said Justice Heather McNaughton in Parmar v. Tribe Management Inc.
“The MVP must also be considered in light of Tribe’s obligation to protect the health and safety of its employees, its clients, and, by extension, the residents in the buildings to which it provided property management services.”
Allowing for exemptions would result in selective application of the policy, she said.
“I accept that Ms. Parmar was faced with a difficult choice. She apparently held strong beliefs about the safety of the vaccine, and it is not my role to question those beliefs. However, in the extraordinary circumstances of the pandemic in the winter of 2021 and January 2022, implementing an MVP was a reasonable policy choice for employers, including Tribe.”
The MVP reflected the prevailing approach at the time, said the judge.
“At the same time, it ensured that individuals like Ms. Parmar could maintain a principled stance against vaccination without losing their employment by, instead, being put on a leave of absence.”
While it is “extraordinary” for an employer to enact a workplace policy that impacts an employee’s bodily integrity, “in the context of the extraordinary health challenges posed by the global COVID-19 pandemic, such policies are reasonable,” said McNaughton.
“What they do force is a choice between getting vaccinated and continuing to earn an income, or remaining unvaccinated and losing their income. Ms. Parmar made her choice based on what appears to have been speculative information about potential risks.”
Constructive dismissal
The outcome of the decision is not surprising, given the debate around employers being required to maintain a safe and healthy workplace, which has come up in arbitration decisions, says Wardell.
For unionized workplaces, they consider the “KVP test,” referring to the 1965 decision Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. which said an employer can implement a policy as long as it doesn’t conflict with the collective agreement and is reasonable, he says.
In the non-union world, people who have been dismissed because of a vaccine policy may claim constructive dismissal, which requires them to show a fundamental change to the terms and conditions of their employment.
But how long do you have to leave someone on leave before you can fire them? That's unclear, says Wardell, referring to an earlier Supreme Court of Canada decision, Potter v. New Brunswick Legal Aid Services Commission.
“Before the pandemic, it was widely understood from the Potter case… that putting someone on an indefinite leave, it functioned as dismissal, as constructive dismissal. Now decisions say, ‘No, you should leave people on leave.’ Well, my personal, professional view there is ‘No, there's a point where you can — if someone is not going to comply with your policy and it's reasonable — you can fire them for that. That's how every other policy works,’” he says.
“If you're going to give ad hoc exceptions for people who don't have a legitimate need for accommodation, then you really don't have a vaccination policy at all, you just have the status quo.”
Repudiation of contract
As part of the decision, the court ruled there was a repudiation of contract, which occurs when an employee refuses to comply with something that is considered an essential part of the employer contract or their job duties, says Winkel. When that occurs, the employer can either accept that repudiation and treat that employment relationship as being at an end, or they can let the relationship continue.
“What we saw here was the employer let that relationship continue. And the reason why the judge found that it was a repudiation was because this employee’s contract had expressly provided that she would comply with all of its policies… [and] in finding that the mandatory vaccination policy was both reasonable and lawful, the judge then felt that the employee's refusal to comply with the mandatory vaccination policy, therefore, constituted that repudiation,” she says.
“[Parmar’s] reservations, while they may be valid to her personally, they're not valid in the sense of being included in the [vaccination] policy under those accepted express exemptions, and so were considered to be unreasonable.”
Repudiation is about the first person or first party to behave as though the employment relationship is no longer continuing and has said that they won't abide the terms of the contract, says Wardell.
“Sometimes that comes up when an employee sues their employer while they're working… you're no longer prepared to work with your employer if you're engaged in a lawsuit about them, about your employment,” he says.
With Parmar saying, “No, my employment has ended, you have fired me,” that's a repudiation, says Wardell.
“That's how the employment relationship ended. It was her taking the position that it was over, which was an unjustified position to take, given the reasonableness of the vaccination policy.”
Spotlight on the pandemic
The judge in this decision made a point to thoroughly go over the COVD situation when the policy was introduced and enforced, outlining emergency measures, “unprecedented” public health orders and government vaccine mandates, along with judicial notice that this involved “a potentially deadly virus that is easily transmissible” and the fact that vaccines work.
Those two points underpinned the legal analysis in this case, says Winkel, “and that context was certainly prevalent in the decision, and very important.”
“As we move through waves of the pandemic and we come through periods where restrictions might be lifted and there might be a sense of hope or a feeling of returning to ‘normal,’ it's easy to forget the situation a month ago, six months ago, a year ago,” she says.
“The judge really took the time to be very careful and very thorough in taking the reader back to the point in time at which the policy was implemented… when COVID was quite problematic and was having major health impacts.”
But it was surprising for McNaughton to take judicial notice, meaning the court accepted certain issues as fact and the employer did not have to prove them, says Wardell.
“For example, the safety and efficacy of vaccines — I was surprised to see that because… we've been working with experts to ensure that evidence is before decision-makers,” he says.
“There is at least one decision that talks about the importance of having some expert evidence on that point. But, the reality of the situation is that whatever the safety level of the vaccines truly is, all levels of government were very consistent in promoting them as safe, effective, reliable and the best way to stop the spread, the best way to stop severe symptoms.”
In taking judicial notice, this decision it saying it was reasonable for employers to follow that guidance, says Wardell.
“It's essentially vindication for employers who were following the guidance as it came out [in saying,] ‘We're not going to force you to get a doctor to say that vaccines are safe and effective, because the government was telling you that and you are listening and taking those steps.’”
