Alberta Court Rules That Unpaid Leave For Employee Mask Refusal Not Constructive Dismissal

In Benke v Loblaw Companies Limited, 2022 ABQB 461 (Feasby J), the Court of Queen's Bench of Alberta found that placing an employee on unpaid leave for refusing to wear a mask at work did not amount to constructive dismissal.

Background

The plaintiff employee was a Customer Experience Specialist – Produce for the defendant employer, Loblaw. Visiting Loblaw stores in-person was an essential part of the employee's role.

In July 2020, the City of Calgary passed a bylaw that required everyone to wear a mask while indoors, except persons with an underlying medical condition or disability which inhibited their ability to wear a face covering.

One week later, the employee provided a note from his family doctor, which stated "[t]his letter is to certify that Michael Benke was assessed in this office and is unable to wear a face mask as per City of Calgary bylaw due to illness." The Court took note that the illness was not identified nor was an explanation provided