Mark Tector and Ben Currie

While there have been a number of arbitration decisions on the subject, Parmar v Tribe Management Inc., 2022 BCSC 1675 appears to be the first reported civil court decision to consider whether placing a non-unionized employee on an unpaid leave of absence for failure to comply with a mandatory vaccination policy (“MVP”) is constructive dismissal.

Ultimately, the Court found that the MVP was a reasonable response to the COVID-19 pandemic and Ms. Parmar made the choice not to comply with it; therefore, she was not constructively dismissed.

One way constructive dismissal occurs is where an employer makes a single unilateral change that substantially alters an essential term of the employment contract. In this context, the Court determined this issue by considering whether Tribe Management Inc.’s (“Tribe”) unilateral decision to place Ms. Parmar on unpaid leave for failure to comply with the MVP was reasonable and justified.

Tribe provides condominium management services. Ms. Parmar was an accounting professional working for Tribe with nineteen (19) years of experience in the industry. Tribe notified its employees on October 5, 2021 of its MVP and required employees to be fully vaccinated by November 24, 2021. Of Tribe’s 200 employees, only Ms. Parmar and one other employee failed to comply by the deadline. She did not claim to have a medical or religious exemption.

Ms. Parmar did not consider herself an “anti-vaxxer”, but explained that she reviewed the literature and was skeptical of the efficacy and side effects of the available vaccines. She also described that her family members experienced several adverse symptoms from the vaccine.

Ms. Parmar proposed several alternatives including working entirely from home, or on a hybrid basis with controlled visits to the office to sign cheques. She also offered to undergo frequent testing, but Tribe reiterated that the only exceptions were for medical or religious accommodation. Ms. Parmar was placed on an unpaid leave for three (3) months from December 1, 2021 to February 28, 2022. On January 25, 2022, Tribe advised Ms. Parmar that she would remain on unpaid leave until she became vaccinated or the MVP was relaxed. Ms. Parmar announced her resignation the next day and considered her employment constructively dismissed.

The Court made the following findings in reaching its decision that the MVP was reasonable and that Ms. Parmar was not constructively dismissed:

• The assessment of the reasonableness of the MVP must be considered based on the knowledge about the pandemic at the time it was implemented and in light of Tribe’s obligation to protect its employees and clients;
• Interestingly, the Court took judicial notice that COVID-19 is potentially deadly, easily transmissible, symptoms vary by person, and that vaccines reduce the severity of symptoms and adverse outcomes despite not preventing infection or transmission;
• The MVP reflected the employer’s statutory obligation to ensure the health and safety of all workers;
• “Individual views of the appropriateness of the MVP do not undermine the reasonableness of the policy”;
• Parmar’s employment contract expressly stated that she would comply with all of Tribe’s policies as amended at Tribe’s discretion, subject to the policies being lawful and reasonable;
• Tribe did not intend to terminate Ms. Parmar’s employment as she was a valued employee and expected to return to her new role, which she was recently promoted into; and
• Implementing a MVP was a reasonable policy choice for employers based on the extraordinary circumstance of the pandemic in October of 2021 into January of 2022 and was the prevailing approach at the time.

As the first reported decision on the enforceability of MVPs in the non-union context, this case is significant. While we will have to wait to see if other Courts in different provinces follow this approach, it is good news for other employers who have implemented MVPs, including MVPs which result in employees being placed on unpaid leaves.  It is also significant the Court took judicial notice that (1) COVID-19 is serious and potentially deadly; and (2) that vaccines are an important and effective tool in reducing the potential harm.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

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