Employment Insurance (EI)

Decision

[1] An extension of time to file the application for leave to appeal is granted. However, leave to appeal is refused. This means the appeal will not proceed.

Overview

[2] The Applicant (Claimant) worked at one of the employer’s appliance retail stores for over 11 years. In the fall of 2021, she was the store administrator for that one store.  She had to be in the store to do most of her work. Her in-store work would require personal interaction with other staff. The employer suspended the Claimant because she did not comply with their COVID-19 vaccination (policy). The Claimant then applied for Employment Insurance (EI) regular benefits.

[3] The Respondent (Commission) determined that the Claimant was suspended from her job because of misconduct so it was not able to pay her benefits. After reconsideration, the Claimant appealed to the General Division.

[4] The General Division found that the Claimant was suspended following her refusal to follow the employer’s policy. It found that the Claimant knew that the employer was likely to suspend her in these circumstances. The General Division concluded that the Claimant was placed on a leave of absence from her job because of misconduct.

[5] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division.  She submits that she has a right to bodily autonomy and freedom of choice. The Claimant puts forward that the vaccination policy was illegal and went against her contract of employment. She submits that forcing her to get the vaccine is a violation of her constitutional rights.

[6] I must decide whether the Claimant has raised some reviewable error of the General Division upon which the appeal might succeed.

[7] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issues

[8] Should an extension of time be granted so that the Claimant can file her application for leave to appeal?

[9] If so, does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? 

Analysis

[10] Section 58(1) of the Department of Employment and Social Development Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

[11] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error.  In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[12] Therefore, before I can grant leave to appeal, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. 

Should an extension of time be granted so that the Claimant can file her application for leave to appeal?

[13]  The Claimant explained that she was late filing her appeal because she was devastated emotionally after the General Division decision. She needed time to find the strength to file her application for leave to appeal.

[14] I find that, under the circumstances, and when considering that the delay is not significant, the interest of justice favors granting the Claimant an extension of time to file her application for leave to appeal without prejudice to the Commission.^{Footnote 1}

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[15] The Claimant submits that she has a right to bodily autonomy and freedom of choice. The Claimant puts forward that the vaccination policy was illegal and went against her contract of employment. She submits that forcing her to get the vaccine is a violation of her constitutional rights.

[16] The Claimant worked at one of the employer’s appliance retail stores for over 11 years. In the fall of 2021, she was the store administrator for that one store.  She had to be in the store to do most of her work. Her in-store work would require personal interaction with other staff. The employer suspended the Claimant because she did not comply with their vaccination policy.

[17] The General Division had to decide whether the Claimant was suspended from her job because of her misconduct.

[18] The notion of misconduct does not imply that it is necessary that the breach of conduct be the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate, or intentional. In other words, in order to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects their actions would have on their performance.

[19] The General Division’s role is not to judge the severity of the employer’s penalty or to determine whether the employer was guilty of misconduct by suspending the Claimant in such a way that her suspension was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to her suspension.^{Footnote 2}

[20] Based on the evidence, the General Division determined that the Claimant was suspended because she refused to be vaccinated in accordance with the employer’s policy in response to the pandemic. She had been informed of the employer’s policy put in place to protect the health and safety of all its workers in the workplace and was given time to comply.  The Claimant refused intentionally; this refusal was wilful. This was the direct cause of her suspension. She knew or should have known that her refusal to comply with the policy could lead to a suspension.

[21] The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct under the Employment Insurance Act (EI Act).

[22] It is well established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the EI Act.^{Footnote 3}

[23] The Claimant argues that the employer’s policy went against her contract of employment and violated her constitutional rights.

[24] As stated by the General Division, the contract of employment gave the employer the right to change the terms of the employment contract based on the needs of the business. Furthermore, the employer’s policy is not law, and was implemented by a private business. Therefore, the General Division correctly determined that it did not have jurisdiction to rule on the Canadian Charter of Rights argument raised by the Claimant.

[25] I see no reviewable error made by the General Division when it stated that it had to decide the issue of misconduct solely within the parameters set out by the Federal Court of Appeal, which has defined misconduct under the EI Act.^{Footnote 4}

[26] I am fully aware that the Claimant may seek relief under another law, if a violation is established.^{Footnote 5} This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant was suspended because of her misconduct.

[27] In her application for leave to appeal, the Claimant has not identified any reviewable errors such as jurisdiction or any failure by the General Division to observe a principle of natural justice.  She has not identified errors in law nor identified any erroneous findings of fact, which the General Division may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.

[28] After reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Claimant in support of her request for leave to appeal, I find that the appeal has no reasonable chance of success. 

Conclusion

[29] Leave to appeal is refused. This means the appeal will not proceed.