In Benke v Loblaw Companies Limited, 2022 ABQB 461 Justice Feasby had a situation where an employee who was required to routinely visit stores refused to wear a mask or a face shield and did not provide medical evidence to back up his claim.
Instead of terminating him, the Defendant put him an unpaid leave of absence and continued up to the date of the trial to maintain that he was still an employee and could return to work now that the mask mandate was lifted.
The Court found that the Plaintiff was not constructively dismissed as the Defendants action in putting him on a leave of absence without pay was reasonable as it was the Plaintiff’s voluntary decision not to comply with the policy.
The Court held that the Plaintiff had resigned.
Many employers have chosen this technique of using a leave of absences without pay instead of termination with just cause to deal with person who refused to vaccinate contrary to a policy. This case gives support to that position .
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