The COVID-19 pandemic, commencing as it did over 5 years ago, now seems like a distant, hazy, surreal memory. Readers of legal articles will recall employment lawyers saying, back then, that it would take time for related claims to work their way through the courts.
The legal system grinds along slowly at the best of times, and another significant decision was released by the B.C. Supreme Court in the last few months. It’s an important decision because it upholds the right of employers to implement and adhere to workplace safety policies which are for the collective benefit (while somewhat sacrificing individual rights).
Clark v. Prince George (City)
The Court summarized the dispute between Rob Clark and the City of Prince George as follows…
[1] In late 2021, the City of Prince George (the “City”) implemented a mandatory COVID-19 vaccination policy for its employees. The plaintiff, Mr. Clark, was a City employee at the time. He chose not to be vaccinated against COVID-19. The dispute in this wrongful dismissal claim turns largely on whether or not the City constructively dismissed Mr. Clark when it implemented its vaccination policy and placed him on an unpaid leave of absence for failure to comply with it.
[2] Mr. Clark says that the terms of his employment contract did not include a vaccination requirement and that the City was not authorized to place him on an unpaid leave of absence because he had not been vaccinated. He says that when it placed him on that unpaid leave on January 17, 2022, it made a unilateral change that breached an essential term of the employment contract that he was entitled to treat as a repudiation.
In response, the City of Prince George argued as follows…
[3] The City says that it did not repudiate the employment contract, but rather that Mr. Clark effectively made the choice to resign. According to the City, the employment contract included an implied term allowing it to implement health and safety policies that would apply to Mr. Clark, and the vaccination policy falls within that rubric. In light of the extraordinary circumstances it was dealing with at that stage of the pandemic, the City submits that its decision to place Mr. Clark on an unpaid leave of absence under the policy was reasonable, justified, and did not breach any contractual term.
Background
Mr. Clark had commenced employment with the City in 2009 and was employed, in-person, until his departure in 2022, performing a variety of functions relating to financial planning, budgets, capital expenditures, etc. The City’s vaccination policy, which applied to all employees (including those working remotely), was implemented in November of 2021 and stated…
“The City of Prince George is committed to the health and safety of its employees and protecting its workers and by extension, the public they serve, from the risks associated with the COVID-19 pandemic. The COVID-19 vaccines approved by Health Canada are proven to be safe and effective and being vaccinated for COVID-19 is the best protection against contracting and transmitting COVID-19 and experiencing severe illness. In order to mitigate the risk in our workplace, the City requires all employees to be fully vaccinated against the COVID-19 virus.”
As the Court determined…
[15] Compliance with the vaccination policy was a condition of employment. Those who did not comply would not be eligible to attend work after the deadline and would instead be placed on leave without pay for a minimum period of 30 days. The policy encouraged employees to access the various resources and supports available with respect to the safety and efficacy of the COVID-19 vaccine. Employees who became vaccinated while on leave would be returned to work, while those who remained unvaccinated would be subject to employment consequences up to and including termination of employment.
What Happened?
Mr. Clark chose not to be vaccinated and, in January of 2022, was placed on an unpaid leave of absence. His lawyer wrote to the City, in mid-February, asserting that Mr. Clark had been constructively dismissed from his employment.
Of interest is that 31 of the City’s approximately 770 employees remained unvaccinated when the City’s policy was implemented. Of those, 4 eventually received their vaccines and returned to work, 3 were approved for human rights accommodations, 1 resigned, and the remaining 23 were placed on unpaid leave. Of those, all (except Mr. Clark) simply remained on unpaid leave until the vaccination policy was suspended, at which point they were offered a return to work.
The Court’s Findings
In rejecting Mr. Clark’s claim for damages for wrongful/constructive dismissal, the Court first found that “the purpose of the initial 30-day unpaid leave of absence, which was subsequently extended for all employees who remained unvaccinated, was to allow employees an opportunity to educate themselves, reconsider and receive the vaccine if that is what they concluded they should do.”
The Court went on to explain its reasoning for rejecting Mr. Clark’s claim…
[51] I agree with the City that it would be illogical, not to mention unworkable in light of its obligations, to find the City in breach of individual employment contracts for implementing and enforcing City workplace health and safety policies without individual employees expressly agreeing to those policies. Having regard to the criteria set out in Village Gate, an implied term permitting the City to implement workplace health and safety policies during the course of Mr. Clark’s employment, which policies he would be required to abide by, is reasonable and equitable, is necessary to give business efficacy to the contract, is obvious, is capable of clear expression and does not contradict any express term of Mr. Clark’s contract.
[52] … Mr. Clark effectively acknowledged that the City was entitled to introduce workplace policies, including health and safety policies, during his employment. This is consistent with my finding that the parties must have intended a contractual term permitting the employer to unilaterally implement workplace health and safety policies to which Mr. Clark would be subject.
[53] However, Mr. Clark says that even if the City could introduce workplace policies, it could only do so if those policies did not fundamentally change the terms of his employment contract, which is what he says the vaccination policy did. He says the issue should not be framed with reference to whether his employment contract included a term permitting the employer to implement workplace health and safety policies generally, but rather with reference to whether it included a term permitting the implementation of a mandatory vaccination policy specifically. …
[56] I do not agree with Mr. Clark’s framing of the question. I have found that it was an implied term of Mr. Clark’s employment contract that the City was permitted to implement workplace health and safety policies during the course of Mr. Clark’s employment and that those workplace health and safety policies would apply to him. On the evidence before me, I find that a vaccination policy falls within that category. …
[63] I find that the City had legitimate business reasons for imposing the consequence of an unpaid leave of absence for non-compliance with the vaccination policy and that it acted in good faith. The evidence that the vaccination policy was implemented in order to respond to the unprecedented challenges and risks posed by the COVID-19 pandemic and the attendant safety concerns within the City’s workplaces and its broader community is compelling. It was reasonable for the City to apply the vaccination policy to all employees in order to meet the objectives of that policy and placing employees who did not comply with it on unpaid leave was, in turn, a reasonable measure considering the policy’s rationale and objectives. …
[77] The City acted in good faith and for legitimate business reasons in placing Mr. Clark on an unpaid leave of absence for non-compliance with the vaccination policy. … I find that the vaccination policy was carefully considered, accounted for the City’s interests, those of its employees and the population it serves, and its terms were known to Mr. Clark. The policy was consistently applied and Mr. Clark retained the ability to bring his leave of absence to an end and return to work if he so chose ... While the policy was certainly exceptional, it reflected the then “prevailing approach” in the face of extraordinary and unprecedented circumstances and did not compel non-consensual medical treatment ... The unpaid leave of absence was a reasonable measure in the face of the City’s legitimate interest in the vaccination policy and Mr. Clark’s ineligibility to work due to his non-compliance with that policy.
Having determined that the City did not breach its employment agreement with Mr. Clark (hence, he was not constructively dismissed), his claim for damages for wrongful/constructive dismissal was rejected. Although it’s been over 5 years since the pandemic commenced and over 3 years since Mr. Clark walked away from his long-standing employment with the City of Prince George, it’s clear to see that this was the correct outcome.
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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.