Alberta court denies Loblaw employee severance, did not comply with mask mandate

Benke v. Loblaw Companies Limited

The Alberta Court of Queen’s Bench (ABQB) recently addressed a constructive dismissal claim by a Loblaw employee, Michael Benke, who was placed on an unpaid leave of absence for not complying with the company’s masking policy.

The ABQB found that Benke was not constructively dismissed, but rather, had resigned. As a result, he was not owed severance pay by Loblaw.

Facts

• Benke worked for Loblaw as a “Customer Experience Specialist – Produce”. As part of his role, he was provided a company vehicle to travel to the grocery store. The ABQB found that attending the workplace in person was an important part of Benke’s job.
• Around March 2020, Loblaw directed its employees to work remotely until further notice.
• In July 2020, the City of Calgary passed a bylaw requiring mask usage indoors.
• In August 2020, Loblaw implemented a mandatory mask policy for all employees and customers (excluding those with medical exemptions).
• Benke submitted a Work Absence Certificate from his doctor – stating that he was not required to wear a mask due to illness. Between August and November 2020, Loblaw allowed Benke to work without a mask.
• Benke met with the company’s human resources (HR) department to discuss the mask mandate and a continuing mask exemption.
• Around November 2020, Loblaw requested that Benke provide a form from his doctor indicating that his mask exemption was to accommodate a disability. He returned the form to the company, but it did not indicate that his exemption request was related to a disability.
• The ABQB learned that an occupational health nurse employed by Loblaw reviewed the note with Benke. He indicated that his mask exemption was not formed on medical grounds and he could not use a plastic face shield instead.
• Shortly after, Benke was placed on an indefinite unpaid leave of absence. He returned his company vehicle and eventually secured alternative employment prior to the summary trial.
• Benke did not explicitly resign from his employment at any time. Instead, he sued Loblaw for constructive dismissal.
• In January 2021, Benke’s doctor rescinded her initial indication that he should be exempted from wearing a mask. Instead, she recommended that Benke be allowed to continue working remotely.

The Court’s Decision

No constructive dismissal

The ABQB found that Benke was not constructively dismissed. At its core, constructive dismissal is when an employee alleges that they have been fired from their job because the unilateral changes made or requested by their employer would result in a fundamental change to the terms and conditions of their employment.

Benke’s decision to not wear a mask was a voluntary choice, which amounted to an inability to perform an essential part of his role. Loblaw’s masking policy was not a substantial change to his employment and did not breach his employment agreement with the company because it was only implemented in compliance with the City of Calgary’s masking bylaw.

Although the unpaid leave of absence was a substantial change to Benke’s employment, the ABQB decided that it did not breach his employment contract.

No duty to accommodate

Loblaw would have a duty to accommodate if Benke proved that he had a disability. However, the ABQB noted that he told an occupational health nurse employed by the company that his accommodation request was “not medical”.

The Court summarized that because Benke failed to establish a medical disability, no duty to accommodate was triggered. Therefore, Loblaw could not be found to have failed in providing him with reasonable accommodations.

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• Disability in the Workplace

Resignation, not termination

The ABQB also found that Benke resigned from his employment based on his actions – despite no clear verbal indication of doing so.

The Court reasoned that returning the company vehicle, finding alternate employment, not seeking reinstatement, as well as filing a constructive dismissal claim and human rights complaint collectively amounted to resignation.

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• Do I get severance if I quit?

Lesson for Employees

• Seek legal advice: If you have a medical disability that prevents you from wearing a mask or being able to comply with your employer’s COVID-19 workplace policies, reach out to the experienced employment law team at Samfiru Tumarkin LLP. We can review your situation, inform you of your rights, and your company’s duty to accommodate.

Non-unionized employees with a valid medical exemption could be entitled to severance pay and possible human rights damages if constructively dismissed or fired for not complying with their employer’s mandatory masking policy – particularly where there is no government-mandated masking in place.

Lessons for Employers

• Resignation may be implied in limited circumstances: While the ABQB reasoned that Benke’s resignation was implied in this particular case, it is well-established law that resignation must be based on a clear and explicit indication from an employee.
• Make sure masking policies are clear: This decision shows that it is possible for a company’s masking policy to not be considered a fundamental change to an individual’s employment if a valid medical or religious exemption is not provided. However, this is also dependent on the policy being well-drafted and fairly and consistently implemented in the workplace. This case should not be interpreted to mean that the same reasoning applies to mandatory vaccination policies, which at this time, remains to be seen.