Refusal to comply with face mask policy was repudiation, not constructive dismissal 

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  • September 14, 2022

Refusal to comply with face mask policy was repudiation, not constructive dismissal 

Taylor Topliss

Benke v Loblaw Companies Limited, 2022 ABQB 461 (CanLII)

In this case, a grocery store employee, Mr. Benke, refused to comply with a municipal bylaw requiring face masks in public premises and his employer’s policy requiring face masks to be worn at the workplace.

The court determined the employee’s refusal to perform his job in accordance with the company policy was repudiation of the employment contract and not constructive dismissal.

No medical exemption from policy

Initially, Mr. Benke obtained a doctor’s note stating he was unable to wear a face mask as required by the municipal bylaw due to illness. The illness was not identified nor was an explanation provided as to why the illness prevented him from wearing a mask. Regardless, the employer accepted the medical note and allowed the employee to continue in his role and work without a mask when he was required to be at the workplace.

The employer then implemented a mandatory mask policy and Mr. Benke submitted a request for an exemption. He admitted the exemption request was not based on a medical condition and the employer rejected the request. Mr. Benke was placed on unpaid leave for failure to comply with the masking policy and then filed a lawsuit asserting constructive dismissal.

Without a valid medical exemption there is no duty to accommodate and no discrimination

First, Mr. Benke asserted constructive dismissal for failure to accommodate his medical condition, however, since he could not establish any valid medical conditions that affected his ability to wear a mask, there was no duty to accommodate and this portion of his constructive dismissal claim failed.

Employee’s refusal to perform essential job duties is repudiation of contract

Second, the employee argued that suspension without pay constituted a unilateral change in the employment relationship and constructive dismissal. The court discussed another case where an employer acted prematurely suspending an employee during an on-going criminal investigation when it was not clear that the employee was at fault. However, the court noted that the employee in that case eventually lost his license to work, which would have justified the suspension because he was legally unable to work. The court found this to be analogous to Mr. Benke’s case, as he was required to comply with both a legal requirement, a municipal bylaw, and an employer policy but refused to do so.

[56]           Mr. Benke was put on unpaid leave because he would not perform an essential part of his duties as a Customer Experience Specialist – Produce. Specifically, he would not visit stores because he was required to wear a mask in accordance with the Mask Bylaw and Mask Policy. Mr. Benke’s situation is analogous to the casino worker in Filice without a gaming license or a doctor who is suspended for refusing to wash her hands prior to surgery contrary to a hospital policy. To perform his duties, Mr. Benke was required to comply with both a legal requirement, a municipal bylaw, and an employer policy but he refused to do so.

The court determined that refusal to comply with the municipal bylaw and the terms of his employment was repudiation of his employment contract because he would not perform the essential duties of his contract.

[57]           By refusing to comply with the Mask Bylaw and the Mask Policy, Mr. Benke repudiated his employment contract. Justice Gillese explained in Roden v Toronto Humane Society2005 CanLII 33578 (ONCA) para 46 in the context of employees who refused to comply with an employer policy that “[r]epudiation … takes place when an employee refuses to perform an essential part of his or her job duties in the future. In such a situation, the employer is entitled to accept the repudiation and treat the employment relationship as terminated because the parties no longer agree on the fundamental terms of the contract.”

However in this case, the court found the employer rejected the repudiation by placing Mr. Benke on an unpaid leave, which showed an intention to continue to be bound by the employment contract. The court then addressed Mr. Benke’s constructive dismissal arguments in full.

No substantial change in job responsibilities and no breach of contract

The court determined the mask policy was not a fundamental change to the employment contract as his job responsibilities did not substantially change. He was only required to wear a mask and it was already required by local municipal bylaws and public health authorities.

The court did find the unpaid leave was a substantial change to the employment relationship but not a breach of the employment contract. Mr. Benke refused to perform his duties in compliance with the policies and therefore the employer was within its right not to pay him. In any event, the court found that an objective reasonable employee would not perceive the unpaid leave as being a substantial alteration of an essential term of the employment contract in the circumstances.

Not seeking reinstatement and obtaining a new job was resignation

The court noted that unsuccessful constructive dismissal claims are often treated by courts as a repudiation or resignation by the employee. In Mr. Benke’s case, he did not seek reinstatement, obtained full-time employment with a different employer and although the employer recorded him as being on unpaid leave, the court found he had resigned despite not explicitly communicating that to the employer.

Takeaways Based on the Specific Circumstances of this Case

1.  Imposition of a company policy that does not change a fundamental term of employment is not constructive dismissal.

2.  Imposition of an unpaid leave is not a breach of the employment contract where the employee refuses to perform the essential duties of the job.

3.  An employee’s refusal to perform the essential duties of their job is repudiation of the employment contract.

4.  An employer may accept the employee’s repudiation or continue to be bound by the employment contract by imposing unpaid leave or other discipline.

5.  An employee on unpaid leave who continues to refuse to perform the essential duties of their contract and does not seek reinstatement may be considered to have resigned.