In Benke v
The Facts
In
Loblaw placed
The Court's Decision and Reasoning
The Court explained that in order to determine whether an employee has been constructively dismissed, it must determine: (i) whether the employer has imposed unilateral substantial changes that constitute a breach of the employment contract; and (ii) if a reasonable person in the employee's position would have felt that the breach substantially altered an essential term of the employment contract. The Court held that Loblaw's decision to place
- Loblaw had no obligation to accommodate
Mr. Benke because there was no medical justification for a mask exemption. -
Loblaw's imposition of the Mask Policy was not a substantial change to the employment relationship and as such did not breach the employment contract. The Court explained that
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 Policy. The Court further explained that, the Mask Policy, though imposed by Loblaw, was co-extensive with legal requirements imposed by municipalities and public health authorities. -
While unpaid leave was a substantial change to
Mr. Benke's employment relationship, it was not a breach of the employment agreement because the essence of the employment bargain is that the employee will work and the employer will pay. The Court explained that sinceMr. Benke was not working by reason of a voluntary choice that he made, a choice not to comply with the Mask Policy, it was reasonable for Loblaw to not pay him. Mr. Benke's refusal to abide by the Mask Policy was a repudiation of his employment agreement. Loblaw, however, did not accept the repudiation and instead put him on unpaid leave.
The Court held that
Takeaways for Employers
This case demonstrates that certain policies, such as a mask policy implemented in light of COVID-19, will not be considered unilateral substantial changes that constitute a breach of the employment contract and therefore will not be grounds for a valid constructive dismissal claim. This case also suggests that where an employee refuses to comply with a mask policy, the employer can treat that refusal as a repudiation of the employment contract.
This article was co-authored with
Originally published
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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