In Benke v. Loblaw Companies Limited, 2022 ABQB 461, the Alberta Court of Queen’s Bench, handed down July 5, 2022, ruled that a former employee, the plaintiff, who had a received work absence certificate from his doctor to the effect that he was unable to wear face mask as per City’s mask by-law due to illness. The employee had worked for the employer for some 18 years. The defendant employer later adopted mandatory mask policy that applied to all its stores in Canada. The employee sought an exemption based on a form completed by doctor that had check mark beside statement “is unable to wear a face mask” but words “due to the following medical condition/s or disabilities” were crossed out. The employer placed the employee on indefinite unpaid leave because he refused to wear mask in stores without medical justification and thereby did not comply with mask by-law and mask policy. The former employee brought action for wrongful (constructive) dismissal seeking damages in lieu of notice. The Court dismissed the action following a summary trial.
The Court noted that:
45 … Mr. Benke’s claim is, in part, that he was constructively dismissed because Loblaw failed to accommodate his disability (medical condition) by providing him with alternative modes of working. Mr. Benke’s counsel submits that he could have been assigned different responsibilities, allowed to work part-time, or permitted to work remotely as he had for several months in 2020.
Complainants asserting discrimination on the basis of a disability must establish on a prima facie basis that they have a disability (see Moore v. BC (Education), 2012 SCC 61). Recognizing an employer’s obligation to accommodate, the Court concluded on that point:
49 Since Mr. Benke did not show even on a prima facie basis that he had a disability, there was no reason for Loblaw to pursue the matter further or seek confirmation through an independent medical examination. I find that there was no discrimination and, accordingly, Loblaw had no duty to accommodate Mr. Benke. In the absence of a duty to accommodate, the hypothetical alternative work scenarios posited for Mr. Benke are irrelevant.
The employee argued that the unpaid leave constituted a constructive dismissal.
The Court summarized the test for constructive dismissal:
59 Returning to the question of constructive dismissal, I must address the two questions stated in Potter. Did Loblaw unilaterally impose a substantial change that constitutes a breach of the employment agreement? And, if so, would a reasonable person in the employee’s position have felt that the breach substantially altered an essential term of the employment contract?
The Court concluded:
60 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 (ie. 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.
61 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.
66 Loblaw acted reasonably in putting Mr. Benke on unpaid leave. Mr. Benke was not constructively dismissed from his role at Loblaw; to the contrary, he resigned. Any losses that he suffered from being put on unpaid leave were self-inflicted and not the responsibility of Loblaw.
The action was dismissed.