Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant lost his job because of misconduct (in other words, because he did something that caused him to lose his job). This means that he is disqualified from receiving Employment Insurance (EI) benefits.^{Footnote 1}

Overview

[3] The Appellant lost his job. His employer says he was let go because he went to work knowing that he had contracted the COVID-19 virus, when the guidelines issued to all employees required the Appellant to not go to work in this situation.

[4] The Appellant says he was let go for this reason. He says that, even though he tested positive for COVID-19 on May 23, 2021, he had no symptoms. He continued working until May 31, 2021. He argues that the public health department misdirected him and that, on May 28, 2021, someone working for that organization said he would be penalized if he continued going to work.

[5] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant lost his job because of misconduct. Because of this, it decided that the Appellant is disqualified from receiving EI benefits.

Issue

[6] Did the Appellant lose his job because of misconduct?

Analysis

[7] To answer the question of whether the Appellant lost his job because of misconduct, I have to decide two things. First, I have to determine why the Appellant lost his job. Then, I have to determine whether the law considers that reason to be misconduct.

Why did the Appellant lose his job?

[8] I find that the Appellant lost his job because he continued going to work despite testing positive for COVID-19 on May 23, 2021.

[9] The Commission and the Appellant agree on why the Appellant lost his job.

[10] The employer told the Commission that the Appellant was responsible for providing it with a medical document indicating that he had COVID-19, for his sickness record, but that he hadn’t done that. The employer says that the Appellant was let go because he continued going to work from May 24, 2021, to May 31, 2021, when he had COVID‑19, and that he should not have gone to work in this situation, as required by company rules.

[11] The public health department, through the Appellant’s daughter’s school, required the Appellant to be tested because his daughter had been infected with the virus and was at home in quarantine. The Appellant says he had a first COVID-19 test on May 22, 2021. This test was positive. He says he had a second test on May 28, 2021, and was told on May 31, 2021, that it was positive. He then told the employer the result of this last test. The Appellant says he tried to send the medical document to the employer, but it didn’t work.

[12] The Appellant admits that he went to work between May 24, 2021, and May 31, 2021, despite having tested positive for COVID-19. I find that he acted as the employer says he did.

Is the reason for the Appellant’s dismissal misconduct under the Act?

[13] According to the Employment Insurance Act (Act), the reason for the Appellant’s dismissal is misconduct. A worker who is dismissed because of misconduct can’t receive EI benefits.

[14] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 2} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 3} The Appellant doesn’t have to have wrongful intent^{Footnote 4} (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.

[15] There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of th

at.^{Footnote 5}

[16] The Commission has to prove that the Appellant lost his job because of misconduct. The Commission has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that the Appellant lost his job because of misconduct.^{Footnote 6}

[17] The Commission argues that the Appellant knew the employer’s rules and that he should not go to work if he was in contact with someone with COVID‑19 or if he tested positive himself. The Commission argues that the Appellant showed complete disregard for the rules of the employer and public health by continuing to go to work. According to the Commission, it is clear that the Appellant’s behaviour was conscious.

[18] The Commission also says that the Appellant mentioned in his notice of appeal that, on May 23, 2021, he obtained authorization from the public health department to continue going to work, even though he didn’t mention this argument when his application was first processed or when it was reconsidered. The Commission argues that this argument isn’t credible given the widely known global health measures as a result of the COVID-19 pandemic. The Commission says that the Appellant’s behaviour is so reckless or negligent that it is almost wilful and that this behaviour led to his dismissal.

[19] The employer’s head of human resources told the Commission that the Appellant had informed her on June 1, 2021, of his positive COVID-19 test. She explains that the Appellant had to send her a medical document showing his May 28, 2021, test result for his sick leave record. When he didn’t do that, she contacted the public health department for information. She was then informed that the Appellant had been tested for COVID-19 on May 22, 2021, and had learned on May 23, 2021, that this test was positive.

[20] The head of human resources says that all employees received a guide on February 5, 2021, providing them with guidance on COVID-19. This guide clearly indicates that a person who has been in contact with someone with COVID-19 must get tested, quarantine for 14 days, and not go to work, unless the result is negative. The guide clearly specifies that, when an employee receives a positive test, they must not go to work so as not to spread the disease in the company.

[21] Since the Appellant went to work from May 23, 2021, to May 31, 2021, despite having tested positive for COVID-19, he was let go.

[22] The Appellant told the Commission that the public health department contacted him on May 31, 2021, to tell him that his COVID-19 test was positive and that he had to quarantine for 14 days.

[23] The Appellant admits that he had a first test on May 23, 2021, and was told that it was positive on May 24, 2021. Because he had no symptoms of the disease, he didn’t quarantine and he didn’t tell the employer the result of this test. After talking to a co‑worker about this situation, he decided to get a second test on May 28, 2021. This second test was also positive, and the Appellant later developed symptoms of the disease.

[24] At the hearing, the Appellant explained that he doesn’t blame the employer for letting him go. But he argues that the public health department misdirected him and threatened him.

[25] Someone working for the public health department allegedly threatened the Appellant when he had his second test, telling him that if he went back to work, he could be penalized and fined. The Appellant says that he complied with the public health department’s request after May 31, 2021, and stayed home. He says he was still unfairly let go on June 4, 2021. He explains that the decision to let him go was made unilaterally while he was sick. He argues that the public health department is responsible for his dismissal.

[26] I don’t have to determine whether the dismissal was an appropriate measure, but whether the Appellant’s acts constitute misconduct.

[27] The Appellant knew on May 23, 2021, that his COVID-19 test was positive, but he continued going to work until May 31, 2021. On May 23, 2021, the Appellant knew he had to quarantine because the result was positive. But he didn’t quarantine because he didn’t have symptoms and he wanted to continue working. He didn’t talk to the employer to inform it of his test result or to find a solution.

[28] The Appellant knew that he could not go to work to avoid spreading the disease in the company and that he had to quarantine for 14 days if his test was positive. He also knew that the public health department, through his daughter’s school, had asked him to get tested because his daughter was quarantining at home, as he explained at the hearing. He knew that his daughter, who may have received a positive COVID-19 result or who had been in contact with someone who had tested positive, had to quarantine for 14 days.

[29] The Appellant still went to work from May 24, 2021, to May 31, 2021, and he didn’t tell the employer that his test was positive. He testified that, at that time, he had [translation] “forgotten” the employer’s guidelines and the guide indicating the COVID‑19 workplace procedures. The Appellant relied on the public health department, which allegedly misdirected him.

[30] The employer let him go for gross negligence and because he didn’t follow company rules. The employer says that, because of the Appellant’s act, it was forced to put 25 employees on preventative leave to avoid an outbreak in the workplace, that these employees had to get tested, and that three of them tested positive.

[31] I am of the opinion that the Appellant knew that he could not go to work if he tested positive. He consciously failed to inform the employer. The guidelines the employer issued are clear, and the Appellant should have referred to them. Especially since these guidelines are the same as those of the government, that is, the public health department.

[32] In addition, as the Commission argues, the Appellant had to quarantine if he was in contact with someone who had COVID-19, and he had to get tested and quarantine pending the results of this test. The Appellant did not inform the employer of the positive test result he received on May 23, 2021. Even while waiting to have a second test, the Appellant didn’t quarantine. He continued going to work.

[33] I understand the Appellant’s explanation that the public health department told him he had to stay home when he had his second test. While the Appellant argues that the public health department misdirected him and told him that he could continue going to work pending the result of a second test, I don’t accept this argument. The Appellant was in contact with this daughter, who was infected, and he knew full well the rules she had to follow. The Appellant knew that a person with COVID-19 or who was waiting for a test result or who tested positive for COVID-19 had to quarantine for 14 days.

[34] The Appellant didn’t have symptoms of the disease and may have found the rules restrictive, but he had to follow them. He had to follow the rules of Québec’s public health department of course, but he was let go because he didn’t follow his employer’s rules.

[35] The Appellant admitted at the hearing that the employer had provided him with a COVID‑19 workplace procedure guide.

[36] While the Appellant argues that someone from the public health department allegedly threatened that he could be penalized if he continued going to work and that they caused his dismissal, the Appellant was let go by his employer because he didn’t follow the employer’s rules.

[37] To explain why he didn’t tell the employer about the positive result he had received on May 23, 2021, the Appellant said that he had completely forgotten [translation] “this situation” and that he had relied on the public health department, which is at fault.

[38] Although I don’t have to determine whether the Appellant’s act had wrongful intent, I point out that the Appellant’s behaviour had consequences for his co-workers and employer.

[39] I also point out that I understand the position of the Appellant, who feels he has been wronged. He didn’t want to lose his job. I note that the Appellant’s skills at work aren’t being questioned. The employer let him go because he went to work despite having tested positive for COVID-19.

[40] After considering the Appellant’s statements, I am of the opinion that, even if he wanted to confirm his positive result because he was asymptomatic, the Appellant knew he had to quarantine because, as he mentioned at the hearing, his daughter was in quarantine. And the public health department told him that he had to get tested. The employer’s rules required the Appellant to not go to work while waiting for a test result, but also when a test result was positive.

[41] The Appellant admits that he received clear guidance from the employer in February 2021 on COVID-19 in the workplace. As an explanation for going to work despite a positive test result, he says he forgot. But the Appellant knew he wasn’t following the employer’s rules on COVID-19, since they were the same as those of the public health department. The Appellant’s daughter was in quarantine at home, and the Appellant had personally received information about the rules to follow.

[42] The Appellant was let go because he went to work when he had tested positive for COVID-19 and because he didn’t follow the employer’s rules. He acted as the employer says he did, and he did so wilfully. His wilful act constitutes misconduct.

So, did the Appellant lose his job because of misconduct?

[43] The Appellant mentioned that the Commission paid him sickness benefits. These special benefits are paid for a maximum of 15 weeks. The Appellant can’t receive regular benefits if he was let go because of misconduct. When an employee doesn’t follow their employer’s rules, they can assume they will be let go.

[44] As mentioned, I don’t have to determine whether the dismissal was an appropriate penalty. But I point out that the possibility of getting benefits is assessed in the same way for a period of suspension or after a dismissal. In this case, I have to decide whether the Appellant acted as the employer says he did and whether those acts constitute misconduct under the Act.

[45] Based on my findings above, I find that the Appellant lost his job because of misconduct. The Appellant acted as the employer says he did, and going to work when he should have been in quarantine constitutes misconduct under the Act.

Conclusion

[46] The Commission has proven that the Appellant lost his job because of misconduct. Because of this, the Appellant is disqualified from receiving EI benefits.

[47] This means that the appeal is dismissed.