Case Summary
This case study examines the wrongful dismissal claim of Ms. Duong Yee against her employer, WestJet, an Alberta Partnership. Ms. Yee, an Accountant II, was terminated for cause on December 1, 2021, after 11 years of service, due to her failure to comply with WestJet’s COVID-19 Vaccination Policy. She had sought a religious exemption, which WestJet denied. The Alberta Court of Justice found that WestJet failed to properly consider Ms. Yee’s religious accommodation request, rendering the “just cause” dismissal invalid. The Court also determined that even if the religious exemption denial were reasonable, termination was not a proportionate response given Ms. Yee’s ability to work remotely and the limited impact of her non-compliance. The Court awarded Ms. Yee damages equivalent to 11 months’ salary.
Case Background
Duong Yee, a long-term employee of WestJet, was terminated for refusing to comply with the company’s COVID-19 Vaccination Policy on religious grounds. The key events are as follows:
Employment History:
- Ms. Duong Yee began her employment with WestJet on May 17, 2010, as a Part-Time Sales Super Agent.
- She received several promotions, eventually becoming an Accountant II – Operations Accounting by November 14, 2016.
- At the time of her termination on December 1, 2021, Ms. Yee was 36 years old and had 11 years of service with WestJet. Her annual salary in 2019 was approximately $71,550.28.
- Ms. Yee’s work performance was consistently professional and met deadlines, even leading up to her unpaid leave. She had specialized institutional knowledge unique to the airline industry.
- From May 2021 until her unpaid leave on November 1, 2021, Ms. Yee worked exclusively from home. Her position was designated as “Mobile Home” by WestJet’s Mobile Workforce Policy, meaning she was expected to work from a home office most of the time.
WestJet’s Vaccination Policy (2021) and Yee’s Request for Religious Exemption:
- On August 13, 2021, the Government of Canada announced its intention to mandate COVID-19 vaccinations for air transportation employees by the end of October 2021.
- On September 8, 2021, WestJet announced its own policy requiring all employees to be fully vaccinated by October 30, 2021, and to declare their vaccination status by September 24, 2021.
- On September 20, 2021, Ms. Yee submitted a COVID-19 Vaccine Accommodation Request Form, citing deeply held religious beliefs as a Bible-believing Christian who relies on Jesus Christ as her healer and views vaccines as a “betrayal of faith.” She also expressed concerns about vaccine safety. She requested exemption from vaccination, masks, and rapid testing, and sought accommodation to continue working from home.
- On October 4, 2021, WestJet denied Ms. Yee’s request, stating that the information provided was “insufficient to establish [she] require[d] an accommodation” and that her expressed safety concerns “cast doubt on religion being the grounds for your application,” implying she was seeking accommodation for secular reasons. The decision was declared final and not subject to internal appeal.
- On October 16, 2021, WestJet formally issued its COVID-19 Vaccination Policy.
- On October 22, 2021, WestJet placed Ms. Yee on a one-month unpaid leave of absence, effective November 1, 2021, warning her that failure to be fully vaccinated by November 30, 2021, could result in termination for cause.
- On October 30, 2021, the Canadian government enacted “COVID-19 Order 43,” which required air carriers to mandate vaccination for employees accessing “aerodrome property” and to provide a procedure for religious exemptions under the Canadian Human Rights Act.
- On December 1, 2021, WestJet terminated Ms. Yee’s employment for cause, citing her inability to fulfill a condition of employment by not complying with the Vaccination Policy. She was informed she could reapply if she became compliant.
Legal Action
Yee sued for wrongful dismissal, arguing:
- WestJet failed to properly accommodate her religious beliefs.
- Termination was disproportionate (she was working remotely and posed no risk).
WestJet defended its decision, claiming:
- The policy was reasonable and legally mandated.
- Yee’s refusal was willful insubordination.
Court’s Analysis & Decision
- Jurisdiction: Can the Court Hear the Case?
WestJet argued the claim was really a human rights complaint (discrimination), which should go to the Canadian Human Rights Commission.
Court ruled:
- The claim was properly framed as wrongful dismissal (breach of contract).
- Courts can assess discrimination issues when tied to wrongful dismissal (Lewis v. WestJet).
- Was the Vaccination Policy Reasonable?
Yes. The policy was:
- Aligned with federal law.
- Clear and consistently enforced.
- Included an accommodation process.
- Was the Denial of Yee’s Religious Exemption Unreasonable?
Yes. The court found:
- WestJet did not properly assess her religious objection.
- Her safety concerns did not negate her religious beliefs (Syndicat Northcrest v. Amselem).
- WestJet failed to request additional information before denying her request.
- Did WestJet Have Just Cause to Terminate?
No. The termination was disproportionate because:
- Yee was working remotely and posed no safety risk.
- Federal regulations only required vaccination for on-site workers (she was fully remote).
- WestJet did not explore alternatives (e.g., continued remote work).
- Damages Awarded to Yee
- Wrongful dismissal damages: 11 months’ salary ($65,587.72).
- Based on length of service (11 years), age (36), and job market conditions.
- No aggravated damages: Termination was not egregious or malicious.
- No mitigation deduction: WestJet failed to prove Yee could have found another job.
- Termination Clause Invalid
The Employment Agreement included the following termination clause:
“WestJet may immediately terminate your employment, whether within the probationary period or after the probationary period, for just cause. If your employment is terminated for just cause, WestJet shall pay your pro rata Salary up to your last day of work, and any outstanding expenses, overtime and accrued vacation. In the circumstances of a just cause termination, WestJet will not make any further payments to you and all entitlement to benefits and perquisites shall immediately cease on your last day of work.
WestJet may terminate your employment after successful completion of the probationary period, for a reason that does not constitute just cause, by providing you with advance working notice, or pay in lieu of notice and severance pay in accordance with the statutory minimums provided for in the Canada Labour Code. In addition, you would be paid your pro rata Salary up to your last day of work, and any outstanding expenses, overtime and accrued vacation pay. Your entitlement to benefits and other WestJet perquisites would cease on your last day of active employment, regardless of the reason for cessation, and regardless of whether or not advance notice is given. You agree that provided WestJet terminates your employment without just cause in accordance with the provision of this paragraph, that you have no additional claim against WestJet for any additional severance or termination compensation. (Emphasis added)”
- WestJet’s contract limited severance to statutory minimums if terminated without cause.
- But since WestJet wrongly claimed cause, the clause did not apply.
Outcome
The Alberta Court of Justice ruled in favor of Ms. Duong Yee, finding that WestJet had wrongfully dismissed her.
- The Court asserted jurisdiction over the wrongful dismissal claim, even with underlying human rights allegations.
- WestJet failed to establish just cause for dismissal, primarily because it did not properly consider Ms. Yee’s religious accommodation request.
- Even if the exemption denial were reasonable, the termination was not a proportionate response given Ms. Yee’s remote work status and the availability of alternatives.
- The termination clause in Ms. Yee’s employment agreement did not limit her to statutory severance because WestJet did not terminate her in accordance with the “without cause” provisions.
- Ms. Yee was awarded $65,587.72 in damages, representing 11 months’ salary.
- WestJet failed to prove Ms. Yee did not mitigate her damages.
- Ms. Yee’s claim for moral/aggravated damages was dismissed due to insufficient evidence of unduly insensitive conduct by WestJet and actual damages incurred by Ms. Yee beyond normal termination distress.
Key Takeaways for Employers
- Religious accommodation must be properly assessed.
- Employers cannot dismiss sincere religious objections without thorough consideration.
- Safety concerns do not automatically override religious beliefs.
- The decision to terminate must be proportionate.
- Even if a policy is reasonable, dismissal must fit the misconduct.
- Alternatives for accommodation (e.g., remote work) should be explored before termination.
- Courts can rule on discrimination (rather than sending the case to the Human Rights Commission) in wrongful dismissal cases.
- Employees can sue for wrongful dismissal even if human rights issues are involved.
- Failure to mitigate by the employee must be proven by the employer.
- If an employer claims an employee failed to mitigate, they must show that job opportunities existed.
This case highlights the balance between workplace safety policies and religious rights. While employers can enforce reasonable vaccination mandates, they must:
- Properly assess accommodation requests.
- Consider alternatives before termination.
- Ensure dismissals are proportionate.
Yee’s termination was wrongful because WestJet failed to accommodate her religious beliefs and did not justify dismissal as a last resort.
💡HRC Tip:
Though we are now years past the Covid-19 pandemic, some court decisions are still outstanding at various levels. At HRC, we can help to keep you up-to-date with the most recent decisions and suggested best practices to manage your risk when it comes to human rights complaints and requests for accommodation in the workplace.
Case Citation: Yee v. WestJet, 2025 ABCJ 87 (CanLII)
