Employment Insurance (EI)

Introduction

[1] The Claimant (who is the Appellant in this appeal) worked as a Manager for X.  He was placed on an unpaid leave of absence and later dismissed from his job because he failed to comply with the employer’s mandatory COVID-19 vaccination policy^{Footnote 1} (the policy). 

[2] He applied for regular employment insurance (EI) benefits, but the Commission (who is the Respondent in this appeal) said he was suspended from his job – and ultimately lost his job – due to his own misconduct.  This meant he could not be paid any EI benefits. 

[3] The Claimant asked the Commission to reconsider its decision.  He admitted he was put on an unpaid leave of absence and later terminated from his job for non-compliance with the policy.  But he said he considers his personal medical information to be private and confidential and the requirement to disclose his vaccination status a violation of his Human Rights.    

[4] The Commission maintained that he could not be paid EI benefits.  The Claimant appealed that decision to the Social Security Tribunal (Tribunal). 

Issue

[5] I must decide whether the appeal should be summarily dismissed.

The law

[6] The law says I must dismiss an appeal summarily (which means without a hearing) if the appeal has no reasonable chance of success^{Footnote 2}.  This means I must consider whether it is plain and obvious on the record that the appeal is bound to fail^{Footnote 3}.

[7] The Tribunal’s own regulations say that before summarily dismissing an appeal, I must give the Claimant notice in writing and allow a reasonable period of time to make submissions^{Footnote 4}.

[8] On August 27, 2022, the Claimant was advised of my intention to summarily dismiss his appeal (GD06).  He was given until September 12, 2022 to make detailed written submissions explaining why his appeal had a reasonable chance of success. 

[9] The Claimant responded by filing the documents and information at GD7, GD8 and GD9^{Footnote 5}. 

[10] I am summarily dismissing his appeal because it has no reasonable chance of success. These are the reasons for my decision.

Analysis

[11] The law says a claimant cannot be paid EI benefits if they are suspended from their employment due to their own misconduct^{Footnote 6} or if they lose their employment because of their own misconduct^{Footnote 7}. 

[12] To be misconduct under the law, the conduct has to be wilful.  This means the conduct was conscious, deliberate, or intentional^{Footnote 8}.  Misconduct also includes conduct that is so reckless (or careless or negligent) that it is almost wilful^{Footnote 9} (or shows a wilful disregard for the effects of their actions on the performance of their job). 

[13] The Claimant doesn’t need to have wrongful intent (in other words, he didn’t have to mean to do something wrong) for his behaviour to be considered misconduct under the law^{Footnote 10}.

[14] There is misconduct if the Claimant knew or should have known his conduct could get in the way of carrying out his duties towards the employer and there was a real possibility of being suspended or dismissed because of it^{Footnote 11}.

[15] The Commission has to prove the Claimant was suspended and lost his job due to misconduct^{Footnote 12}.  It relies on evidence its representatives^{Footnote 13} obtain from the employer and the Claimant to do so.

[16] The undisputed evidence in the appeal file shows that:

1. a)  the employer implemented a mandatory Covid-19 vaccination policy in response to the Covid-19 pandemic^{Footnote 14}.  The policy was intended to protect health and safety in the workplace, and it applied to all X employees^{Footnote 15}.
2. b)  the Claimant was informed of the policy and given time to comply with it^{Footnote 16}.
3. c)  the Claimant refused to comply with the policy when he failed to disclose his vaccination status by the deadlines set out in the policy^{Footnote 17}.
4. d)  the Claimant made a conscious, deliberate and intentional choice not to disclose his vaccination status or be vaccinated^{Footnote 18}.  This made his refusal to comply with the policy wilful. 
5. e)  he knew his refusal could cause him to be placed on an unpaid leave of absence^{Footnote 19} and eventually lose his job^{Footnote 20}. 
6. f) his refusal to comply with the policy was the direct cause of his unpaid leave of absence^{Footnote 21} and subsequent dismissal^{Footnote 22}.

[17] It is well established that a deliberate violation of an employer’s policy is considered misconduct within the meaning of the EI Act^{Footnote 23}.  The undisputed evidence in the appeal file similarly supports a conclusion that the Claimant’s wilful refusal to comply with the policy (by providing proof of vaccination by the given deadline) was misconduct under the EI Act. 

[18] The Claimant argues that the employer acted unfairly and in a discriminatory fashion when it placed him on an involuntary leave of absence without pay and subsequently summarily terminated his employment^{Footnote 24}.  He also argues that the policy amount to a “criminal assault”^{Footnote 25}, and violated his constitutional and human rights^{Footnote 26}. 

[19] But the employer’s conduct is not the issue on this appeal.  It’s not the Tribunal’s role to decide if the employer acted fairly or if the penalty for non-compliance with the policy was too severe^{Footnote 27}.  Nor is it open to the Tribunal to decide if the policy violated the Claimant’s human rights^{Footnote 28}.   The Claimant is free to make these arguments before the appropriate adjudicative bodies and seek relief there^{Footnote 29}. 

[20] I can only consider whether the Claimant’s actions were misconduct under the EI Act.

[21] There is no evidence the Claimant could present at a hearing that would change the facts listed in paragraph 16 above.  And if I accept these facts as true, there is no argument the Claimant could make that would allow me to conclude anything other than that he was suspended – and later dismissed – from his employment due to his own misconduct, and cannot be paid EI benefits as a result.

[22] This means his appeal has no reasonable chance of success. 

[23] Since it is plain and obvious to me on the record that the Claimant’s appeal is bound to fail, the law requires me to summarily dismiss his appeal.

Conclusion

[24] The appeal has no reasonable chance of success and is, therefore, summarily dismissed.