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Resignation Or Constructive Dismissal For Failing To Comply With Mask Policy? The Alberta Court Of Queen’s Bench Has Officially Weighed In On The Debate – Employee Rights/ Labour Relations

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In Benke v. Loblaw Companies Limited, the
Alberta Court of Queen’s Bench ruled that an employee who was
put on an unpaid leave of absence due to refusing to comply with
the employer’s mandatory Mask Policy, did not amount to
constructive dismissal. Rather, the Court determined that the
employee had resigned.


In 2020, Loblaw instituted a masking policy for all employees
and customers. The policy contained several exemptions, including
(i) persons with an underlying medical condition which inhibits
their ability to wear a mask, (ii) persons who were unable to
place, remove, or use a mask without assistance and (iii) persons
who were reasonably accommodated by not wearing a mask under human
rights legislation.

Mr. Benke, a Loblaw employee, sought an exemption based on an
undiagnosed medical condition. When Loblaw requested further
medical information, his treating physician did not substantiate a
medical justification. Given Mr. Benke’s non-compliance with
the Mask Policy, Loblaw put the employee on indefinite unpaid
leave. The employee claimed that this action constituted
constructive dismissal and that he was entitled to substantial
damages in lieu of notice of termination.

The Decision

The Court rejected Mr. Benke’s claim citing the following

  • Mr. Benke did not present evidence of a disability or medical
    condition that required accommodation. For this reason, there was
    no discrimination and, accordingly, Loblaw had no duty to
    accommodate the employee.

  • Imposing the mandatory Mask Policy was not a substantial change
    to the employee’s employment. The Court noted that the
    employee’s job responsibilities had not changed and rather the
    only thing that was different was a requirement to wear a mask. The
    Mask Policy was also co-extensive with legal requirements imposed
    by municipalities and public health authorities.

  • Being placed on an unpaid leave was not a breach of the
    employee’s employment agreement. The Court noted the following
    well-recognized principle: the essence of the employment
    relationship is that the employee will work and the employer will
    pay. Mr. Benke’s inability to work was the consequence of a
    voluntary choice that he made and Loblaw had no obligation to pay
    him for not working.

Takeaway for Employers

The Alberta Court’s finding in Benke provides
support and clarity for employers: absent a valid medical or
religious exemption, a properly drafted and implemented COVID-19
masking policy will not be considered a unilateral change in the
employment relationship sufficient to establish a claim of
constructive dismissal (or damages for pay in lieu of notice of the
end of employment). In fact, once an employee has refused to comply
with a mask policy, the employer may be able to treat the refusal
as an immediate repudiation of the employment contract.

It remains to be seen whether the Court’s reasoning will
apply in cases of COVID-19 vaccination policies, however employers
may garner optimism that decision makers appear to have little
patience for employees who cannot provide some type of objective
evidence in support of their requests for exemptions.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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