In Benke v Loblaw Companies Limited, 2022 ABQB 461, the Court of Queen’s Bench of Alberta (ABQB) dismissed an employee’s claim that he had been constructively dismissed when his employer did not accommodate him with a mask exemption and put him on indefinite unpaid leave. During the COVID-19 pandemic, the employee refused to comply with the City of Calgary’s mask bylaw and the employer’s mask policy and was therefore unable to work. The court found that the employee’s inability to work was a consequence of a voluntary choice that he made. The employer had no obligation to accommodate him because the employee provided no medical justification for a mask exemption; the employer also had no obligation to pay the employee for not working.

The court concluded that by refusing to comply with the mask bylaw and mask policy, the employee repudiated his employment contract and thus the employer could treat the employment relationship as terminated. In this case, however, the employer did not accept the repudiation and instead put the employee on unpaid leave. The court ultimately determined that the employee resigned from his position and any losses that he suffered while on unpaid leave were self-inflicted and not the employer’s responsibility.

Background

The employee oversaw produce and floral departments in his employer’s stores in Alberta and British Columbia. Visiting stores was an essential part of the role.

The mask bylaw required people in public premises to wear a mask....

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