A mandatory vaccine policy’s penalty of unpaid leave does not amount to constructive dismissal

The Supreme Court of British Columbia recently became the first court in Canada to confirm that a non-unionized employee is not constructively dismissed when they are placed on unpaid leave for failing to comply with a mandatory COVID-19 vaccination policy. Parmar v Tribe Management Inc. (2022 BCSC 1675) is a major decision because it confirms that employers who implemented a reasonable mandatory COVID-19 vaccination policy will not be found liable for constructive dismissal when they put non-compliant employees on unpaid leave.

For clarity, constructive dismissal is a legal term that refers to a situation where an employee has not been fired, but the employer failed to comply with a major aspect of the employment contract, making it void. Constructive dismissal is sometimes called “disguised dismissal” as it is putting an employee in a position that is not like the one that they agreed to in their employment contract. Determining constructive dismissal requires an objective view of the employer's conduct. However, it is best to contact one of our lawyers to help assess a case of constructive dismissal.

The Parmar v Tribe Management Inc decision

Parmar worked for Gateway Property Management (Gateway) and then Tribe Management Inc. (Tribe), which purchased Gateway. During the COVID-19 pandemic, Tribe and Gateway implemented many COVID-19 measures, such as masking and social distancing, as they were kept open during the COVID-19 pandemic as essential businesses. On October 5, 2021, Tribe (after purchasing Gateway) advised their employees that they were implementing a mandatory COVID-19 vaccination policy. This policy had medical and religious exceptions and put employees on unpaid leave if they did not fall within those categories. Parmar refused to get vaccinated citing adverse effects that her family members suffered when they got vaccinated and some literature that she read. Parmar was given multiple opportunities to change her mind about getting vaccinated. Tribe refused Parmar’s alternative work suggestions as it was hard for her to do all of her work from home, and it would be unfair and unsafe for her fellow employees if they accepted her suggestions. The policy’s vaccination deadline was on November 24, 2021. On November 25, 2021, Parmar was told that she would be put on unpaid leave, which started on December 1, 2021. Parmar’s last day of paid work was November 30, 2021. On January 26, 2022, Parmar resigned from Tribe and filed a civil suit for constructive dismissal.

Parmar had worked for Gateway and then Tribe Management Inc., for a combined 18 years before being put on unpaid leave for violating the mandatory COVID-19 vaccination policy. She was seen as a good employee that Tribe had intended to keep.

The court dismissed Parmar’s claim of constructive dismissal, finding that Tribe’s policy was legal, and it acted reasonably by placing Parmar on unpaid leave, pursuant to the policy. The court also made some notable findings:

• To create an enforceable policy, the employer needs to have a provision in its employment contract that states that the employee will follow the employer’s policies as they are amended from time to time
• Employers only need to have a reasonable mandatory COVID-19 vaccination policy for the policy to be found legal, the policy does not have to be perfect
• It does not matter whether the employer’s previous policies required mandatory vaccination, as the COVID-19 pandemic was an unprecedented emergency
• An employee’s personal beliefs do not permit them to affect the employer’s business and risk the health of their fellow employees
• Courts will take judicial notice of facts about COVID-19 and the COVID-19 vaccine that are in line with what most health experts say

How Suzanne Desrosiers Professional Corporation can help

In Parmar v Tribe Management Inc., the court makes it clear that you need good contract provisions to make enforceable policies. Suzanne Desrosiers Professional Corporation can help employers by advising them on their existing employment contracts, so they are not found in breach of the contract’s terms. We can also help you draft your new employment contracts on terms that are satisfactory to you.

Suzanne Desrosiers Professional Corporation also has extensive knowledge about drafting legal and reasonable employment policies that can fit your specific business needs. For help with any of your employment law needs you can reach us by calling us at 705-268-6492.