In Benke v Loblaw Companies Limited, 2022 ABQB 461 (Feasby J), the Court of Queen's Bench of Alberta found that placing an employee on unpaid leave for refusing to wear a mask at work did not amount to constructive dismissal.
The plaintiff employee was a Customer Experience Specialist – Produce for the defendant employer, Loblaw. Visiting Loblaw stores in-person was an essential part of the employee's role.
In July 2020, the City of Calgary passed a bylaw that required everyone to wear a mask while indoors, except persons with an underlying medical condition or disability which inhibited their ability to wear a face covering.
One week later, the employee provided a note from his family doctor, which stated "[t]his letter is to certify that Michael Benke was assessed in this office and is unable to wear a face mask as per City of Calgary bylaw due to illness." The Court took note that the illness was not identified nor was an explanation provided as to why the illness prevented the employee from wearing a mask.
Loblaw accepted the doctor's note and allowed the employee to continue in his role and to work without a mask when he was required to be physically in the stores. From August to November 2020, the employee performed his in-person store visits without wearing a mask.
Near the end of August of 2020, Loblaw adopted a mandatory Mask Policy, which required all employees and customers to wear a mask in all its stores across Canada, subject to valid medical exemptions.
At some time between September and November 2020, the employee spoke with human resources about obtaining an exemption to the Mask Policy and was provided with a blank form to request an exemption. The employee returned the exemption request form completed by his family doctor. The employee's doctor had marked a check mark beside the statement "is unable to wear a face mask" but had crossed out the words "due to the following medical condition/s or disabilities."
After Loblaw received the completed exemption request form from the employee, a Loblaw occupational health nurse followed up with the employee to obtain more information about the words, "due to the following medical condition/s or disabilities," that had been crossed out. The nurse stated that the employee had admitted to her that his request for an exemption from the policy was "not medical." The employee denied making this statement. The Court weighed the fact that even at the summary trial, the employee had not adduced any evidence of a medical condition or disability that prevented him from wearing a mask, which strongly suggested that there was no medical basis for his exemption request. The Court accepted the nurse's version of the discussion and found as a fact that the employee had made the statement.
Ruling: Unpaid leave not constructive dismissal
The Court decided that the employee had not been constructively dismissed because the employee had made a voluntary choice not to comply with the employer policy:
 Mr. Benke was put on unpaid leave because he would not perform an essential part of his duties as a Customer Experience Specialist – Produce. Specifically, he would not visit stores because he was required to wear a mask in accordance with the Mask Bylaw and Mask Policy. Mr. Benke's situation is analogous to the casino worker in Filice without a gaming license or a doctor who is suspended for refusing to wash her hands prior to surgery contrary to a hospital policy. To perform his duties, Mr. Benke was required to comply with both a legal requirement, a municipal bylaw, and an employer policy but he refused to do so.
 Loblaw's imposition of the Mask Policy was not a substantial change and did not breach the employment agreement. Mr. Benke's job responsibilities did not change; the only thing that was different was that he had to wear a mask by reason of the Mask Bylaw and Mask Policy. The Mask Policy, though imposed by Loblaw, was not a substantial change and it was co-extensive with legal requirements imposed by municipalities (i.e. the Mask Bylaw) and public health authorities. Similar mask policies prompted by the COVID-19 pandemic have been found to be reasonable by other decision-makers: see, for example, Dickson v Costco Wholesale Canada Ltd, 2022 AHRC 40 at para 29.
 The unpaid leave was a substantial change to Mr. Benke's employment relationship, but it was not a breach of the employment agreement. The essence of the employment bargain is that the employee will work and the employer will pay. Given that Mr. Benke was not working by reason of a voluntary choice that he made, a choice not to comply with the Mask Policy and Mask Bylaw, it was reasonable for Loblaw to not pay him. Though it is not necessary, I conclude that a reasonable employee in Mr. Benke's shoes would not have felt in the circumstances that an unpaid leave as a consequence of failing to abide by the Mask Policy and Mask Bylaw was a substantial alteration of an essential term of the employment contract.
Resignation by implied conduct
The Court also found that the employee had resigned from his employment even if he had not explicitly communicated as such to Loblaw. This finding strays from the general principle that termination of employment or resignation must be explicit or unequivocal and that only clear conduct by the parties will amount to an implicit termination or resignation.
Counsel for Loblaw submitted that the employee had resigned by his actions, including returning his company vehicle, submitting a human rights complaint, and commencing this action for constructive dismissal. The Court also noted that the employee had also secured alternate full-time employment with another employer and did not seek reinstatement as a remedy in the action.
Takeaways of Benke v Loblaw Companies Limited
Benke v Loblaw Companies Limited is a notable case on the rights and obligations of employers and employees respecting unpaid leave amidst the backdrop of COVID-19. The case provides direct guidance to employers who placed employees on unpaid leaves (rather than terminated for just cause) due to non-compliance with employer policies in the context of COVID-19. However, it remains to be seen whether the Court's reasoning will be applied similarly to cases involving employees' refusal to become vaccinated against COVID-19.
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