Recent ALRB Decision on Constructive Dismissal

Throughout 2023, employment law has seen a surge in discrimination and wrongful dismissal files surrounding masking and vaccine regulations. 1831760 Alberta Ltd. (Calgary Climbing Centre Hanger) v Jones, 2023 CanLII 76366, is one such decision that provides valuable insight for employers seeking to mandatory leaves for vaccine violations.

In this case, the respondent argued that she was constructively dismissed by her employer after failing to obtain a vaccine. The timeline of relevant events for this matter is as follows:

  • In September 2021, the appellant employer placed the respondent, and other employees that declined to obtain vaccination, on unpaid administrative leave.
  • On October 7, 2021, the respondent retained a lawyer and argued that she had been constructively dismissed by the appellant. The appellant denied this in a formal letter stating that the suspension was non-disciplinary and was temporary.
  • On January 18, 2022, the respondent filed an employment standards complaint for being suspended without pay effective September 3, 2021.
  • In April 2022, many of the public health restrictions lifted across the province. In response, the appellant advised the employees that had been suspended a result of the vaccine policy that they could return to work. The appellant did not recall the respondent and remained firm that she had quit when she asserted constructive dismissal in her October 2021 letter.

Following from this set of events, at issue before the Tribunal was as follows:

  1. Whether the respondent was constructively dismissed when she was placed on administrative leave.
  2. Whether the respondent quit when she asserted constructive dismissal.
  3. Whether the respondent was constructively dismissed when the appellant did not recall her to return to work.

On the first issue, the Tribunal held that the September 3, 2021, unpaid leave was not constructive dismissal because the appellant was subject to Occupational Health and Safety obligations. Following British Columbia court’s reasoning in Parmar v. Tribe Management Inc., the Tribunal held that the introduction of a vaccination policy did not in itself amount to constructive dismissal. On the second issue, the Tribunal found that the respondent’s October 7, 2021, letter asserting constructive dismissal was not indicative that she had resigned.

On the third issue, the Tribunal followed the Ontario court’s reasoning in Johal v. Simmons da Silva LLP. In this decision, the courts held that where an employee’s resignation status is ambiguous, the employer must follow up to confirm the employee’s intention to resign. The Tribunal held that the appellant’s failure to inquire further into the respondent’s employment status, and failure to recall the respondent in April 2022, was prima facie constructive dismissal.

Counsel for employers must ensure that they are advising their clients of the importance of inquiring further into an employee’s resignation status. For more information on the Tribunal’s reasoning in 1831760 Alberta Ltd. (Calgary Climbing Centre Hanger) v Jones, read the complete decision here.

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