In July, 2020, the City of Calgary passed a bylaw that required people in public premises to wear a mask. In response, Mr. Benke, an employee at Loblaw Companies Limited (“Loblaw”), obtained a note from his family doctor stating that he was unable to wear a face mask due to illness. The illness was not identified and no explanation was provided as to why the illness prevented him from wearing a mask. Loblaw accepted the note at that time.
In August 2020, like many employers, Loblaw implemented a mask policy (the “Mask Policy”). Mr. Benke was provided with a blank form to request an exemption from the Mask Policy, however, his doctor declined to state that Mr. Benke’s request to be exempted from wearing a mask had a medical justification. Mr. Benke refused to wear a mask without medical justification and, as such, Loblaw placed him on indefinite unpaid leave. Mr. Benke argued Loblaw’s action in placing him on unpaid leave constituted constructive dismissal.
In determining whether Mr. Benke had been constructively dismissed, the Court considered:
- whether Loblaw imposed unilateral substantial changes that constituted a breach of Mr. Benke’s employment contract; and
- if a reasonable person in Mr. Benke’s position would have felt that the breach substantially altered an essential term of their employment contract.
The Court held that Mr. Benke was put on unpaid leave because he would not perform an essential part of his duties. Specifically, he could not visit stores because he would not wear a mask, which was required under the Mask Policy. The court stated that this was analogous to a doctor who is suspended for refusing to wash their hands prior to surgery contrary to a hospital policy.
The Court stated implementation of the Mask Policy was not a substantial change and was consistent with legal requirements imposed by municipalities and public health authorities. While placing Mr. Benke on unpaid leave was a substantial change to his employment relationship, the Court held that it was not a breach of the employment agreement given that Mr. Benke was unable to work due to his voluntary choice not to comply with the Mask Policy.
Ultimately, by refusing to comply with the Mask Policy, Mr. Benke refused to perform an essential part of his or her job duties which resulted in the repudiation of his employment contract. Loblaw was entitled to accept the repudiation and treat the employment relationship as terminated or to place Mr. Benke on unpaid leave. Any losses that Mr. Benke suffered from being put on unpaid leave were self-inflicted and not the responsibility of Loblaw.
This decision is a reminder that employers have the right to implement reasonable workplace policies, so long as they do not impose unilateral substantial changes that constitute a breach of the employment contract. An employee who refuses to comply with certain policies, such as the Mask Policy, risks the possibility that the employer will reasonably view this refusal as a repudiation of the employment relationship.
If you have any questions regarding amending COVID-19 policies, or other employment-related questions, please contact one of the members of our Labour & Employment team.