Employment Insurance (EI)

Decision

[1] T. P. is the Claimant. The Canada Employment Insurance Commission (Commission) says she can’t get Employment Insurance (EI) benefits. The Claimant disagrees with this decision, so she is appealing to the Social Security Tribunal (Tribunal).

[2] I am summarily dismissing the Claimant’s appeal. Her appeal has no reasonable chance of success. There is no argument the Claimant could make that would let me allow her appeal.

Overview

[3] The Claimant worked as a health care worker in a seniors’ home. Following a provincial health order, her employer told her she had to provide proof of vaccination against COVID-19 to remain in her job. The employer asked her to provide proof of vaccination by October 12, 2021. The Claimant wasn’t vaccinated by the employer’s deadline. So, the employer suspended her.

[4] The Claimant says she didn’t stop working because of misconduct. She says she has religious reasons for refusing the COVID-19 vaccine. She says her collective agreement doesn’t require untested vaccines.

[5] The Commission says the Claimant was suspended because of misconduct. The Commission says the Claimant knew that her employer required her to be vaccinated against COVID-19. The Commission says the Claimant knew she couldn’t work if she wasn’t vaccinated.

Matters I must consider first

[6] Before I summarily dismiss an appeal, I have to give the Claimant notice. I have to allow her a reasonable period to make arguments about whether I should summarily dismiss the appeal.^{Footnote 1}

[7] Tribunal staff sent an email to the Claimant on July 13, 2022. In this letter, I explained why I was considering summarily dismissing her appeal. I asked her to respond to the letter by July 15, 2022.

[8] The Claimant didn’t respond to the letter. She didn’t contact the Tribunal to ask for an extension of time. She didn’t contact the Tribunal for more information about the letter.

[9] So, I will make a decision based on the evidence I have before me.

Issue

[10] I must decide whether I should summarily dismiss the Claimant’s appeal. To make this decision, I have to decide if her appeal has a reasonable chance of success.

Analysis

[11] I must summarily dismiss an appeal if the appeal has no reasonable chance of success.^{Footnote 2}

[12] This is what “no reasonable chance of success” means: is it plain and obvious, on the face of the record, that the Claimant’s appeal is bound to fail? Are there any arguments or evidence that the Claimant could present at a hearing that would lead to a successful appeal?^{Footnote 3}

[13] The law says you can’t get EI benefits if you lose your job because of misconduct. This applies even if the employer has only suspended you.^{Footnote 4}

[14] If you are suspended from your job because of misconduct, you are disentitled from receiving EI benefits. The disentitlement lasts until one of the following things happens:

• Your suspension ends;
• You lose your job or quit your job; or
• You work enough hours with another job to start a new claim for EI benefits.^{Footnote 5}

[15] To be misconduct under the law, your conduct has to be wilful. This means that your conduct was conscious, deliberate, or intentional.^{Footnote 6} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 7} You don’t have to have wrongful intent (in other words, you don’t have to mean to be doing something wrong) for your behaviour to be misconduct under the law.^{Footnote 8}

[16] There is misconduct if you knew or should have known that your conduct could get in the way of carrying out your duties towards your employer and that there was a real possibility of suspension or dismissal because of that.^{Footnote 9}

[17] The Commission has to prove that the employer suspended you because of misconduct. The Commission has to prove this on a balance of probabilities. This means the Commission has to show that it is more likely than not that you lost your job because of misconduct.^{Footnote 10}

[18] The Claimant argues that she didn’t lose her job because of misconduct. She says that she had religious reasons for refusing the COVID-19 vaccine. She says that she wore masks and took rapid tests before every shift. She says that her collective agreement didn’t include a requirement to take untested, unsafe vaccines. She says she opposed the vaccine mandate.

[19] The Commission says that the Claimant stopped working because of misconduct. The Commission says she knew about the provincial health order and her employer’s requirement to be vaccinated against COVID-19. The Commission says she knew that her employer would suspend her if she wasn’t vaccinated against COVID-19 by the deadline of October 12, 2021.

[20] I agree with the Commission. I find that this appeal has no reasonable chance of success. This is because I find that the Claimant lost her job because of misconduct. There is no argument or evidence that would lead me to a different conclusion.

[21] The Claimant and the employer agree on many of the basic facts about the vaccine policy requirement and the deadline. The Claimant agrees that her employer had a policy, following a provincial health order, that required her to be vaccinated against COVID-19. She agrees that the employer first told her about the policy in September 2021. She knew that the deadline for vaccination was October 12, 2021. She knew that the employer wouldn’t let her keep working if she wasn’t vaccinated against COVID-19.

[22] The Claimant says she chose not to be vaccinated against COVID-19. She says she disagrees with the employer’s vaccine mandate. She opposes the COVID-19 vaccine for religious reasons. She also thinks that her collective agreement doesn’t include a requirement to take untested vaccines.

[23] But it is not up to the Tribunal to decide if the employer acted fairly by introducing a vaccine mandate.^{Footnote 11} It is not up to the Tribunal to decide if the COVID-19 vaccine is safe or effective. I can’t make decisions about whether the employer should have granted her a religious exemption. And I can’t make decisions about whether the employer violated the terms of the Claimant’s collective agreement. The Claimant can pursue other measures through a human rights tribunal or her union if she wants to make these arguments.

[24] My only role is to decide if the Claimant lost her job because of misconduct, under the meaning of the Employment Insurance Act. And I find that the evidence clearly shows me that the Claimant lost her job because of misconduct. I find that this appeal is bound to fail. This is because the Claimant and the Commission agree about the following:

• The employer suspended the Claimant because she wasn’t vaccinated against COVID-19.
• The Claimant knew her employer had a policy requiring all employees to be vaccinated against COVID-19 by October 12, 2021. Even so, she deliberately chose to refuse the COVID-19 vaccine.
• The Claimant knew her employer would suspend her if she didn’t follow their vaccination policy.

[25] So I find that the employer suspended the Claimant because of misconduct. The Claimant’s failure to follow the vaccination policy lead directly to her suspension. She acted deliberately. She knew her actions were likely to lead to suspension.

[26] There is no argument that the Claimant could make that would lead me to a different conclusion. There isn’t any evidence she could provide that would change these facts. Her appeal is bound to fail, no matter what arguments or evidence she could provide at a hearing.

Conclusion

[27] I find that the Claimant’s appeal has no reasonable chance of success. So, I must summarily dismiss her appeal.