B.C. Employer Not Liable for Severance Pay Following Suspension Over Mask Refusal

In a recent decision, the British Columbia Employment Standards Tribunal reversed a determination requiring that an employer pay severance to a former employee who refused to comply with a provincial mask mandate. The decision in Columbus Meat Market Ltd. v. British Columbia (Director of Employment Standards), 2024 BCEST 51 offers guidance on employer rights in the context of COVID-19-related workplace policies.

Background: Suspension Over Mask Mandate

The complainant, a butcher employed by Columbus Meat Market for eight years, was suspended on February 17, 2022, after refusing to wear a mask as required under B.C. public health orders. The employer described the interaction as contentious and reported that the employee said, “go ahead and fire me.” Additionally, the employee tried to rally others to refuse the mask mandate. The employer suspended him. On March 27, after the provincial mask mandate had been lifted, the employer invited the complainant to return to work. He declined, stating that returning was “not an option” due to what he alleged was a hostile work environment.

The Employment Standards Branch (ESB) initially found the employer had constructively dismissed the employee and ordered payment under section 63 of the Employment Standards Act (ESA) for compensation for length of service, plus $500 in penalties. The employer appealed.

The Tribunal’s Findings

The employer’s central argument was that the complainant either quit or was suspended for just cause and therefore was not entitled to severance under the ESA. The Tribunal agreed.

1. No Constructive Dismissal or “Deemed Termination”

The delegate had found that the employer’s reduction of the complainant’s hours to zero amounted to a “deemed termination” under section 66 of the ESA. The Tribunal disagreed. Relying on Cabiakman v. Industrial Alliance Life Insurance Co., 2004 SCC 55, it held the employer had the contractual right to impose a disciplinary suspension for just cause—in this case, insubordination and refusal to comply with a public health order.

2. Suspension Was Justified and Proportionate

The Tribunal concluded that the complainant’s conduct—including his refusal to wear a mask, his inflammatory language, and his efforts to rally co-workers against the mandate—constituted a repudiatory breach of the employment contract. However, rather than terminating the complainant, the employer opted for suspension—a lesser but still justified sanction. The Tribunal emphasized that the complainant was free to return once the suspension ended, and that the employer had made reasonable efforts to facilitate his return.

3. No Entitlement to Section 63 Compensation

The Tribunal found the employment relationship ended not on February 17, but on March 28, 2022, when the complainant refused the employer’s invitation to return. This refusal amounted to a resignation. Under section 63(3)(c) of the ESA, an employee who voluntarily quits is not entitled to compensation for length of service. Therefore, the Tribunal cancelled the determination under section 115(1)(a) of the ESA because the delegate’s finding of “deemed termination” was legally flawed.

Key Takeaways

This decision underscores several critical points for B.C. employers:

• Employers are entitled to suspend employees for just cause, particularly where health and safety compliance is at issue.

• Refusal to comply with public health orders may justify disciplinary measures, including suspension or termination.

• An employee’s post-suspension conduct—including clear refusals to return to work—may amount to resignation, nullifying entitlement to severance under the ESA.

• While ESA officers and delegates have broad discretion, employers can successfully challenge ESA decisions where errors of law are evident.

For questions about this topic or any other workplace law matters, please reach out to Scott Marcinkow or a member of our Workplace Law team. You can also explore more insights by browsing our latest blog posts here.