Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Claimant.

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

Overview

[3] S.M. is the Claimant in this case. The Claimant worked as an Educator at a Child Care Centre. The employer dismissed her because she not follow the employer’s direction to comply with the provincial vaccination mandate at work.^{Footnote 2} The Claimant then applied for EI regular benefits.^{Footnote 3}

[4] The Commission decided that the Claimant was not entitled to receive EI benefits because she lost her employment due to her own misconduct.^{Footnote 4}

[5] The Claimant disagrees with the employer’s direction and provincial mandate to vaccinate for covid19 because of her religious beliefs.^{Footnote 5} She argues that the employer failed to accommodate and did not grant her exemption request. As well, there were no medical exemptions available.

Matters I have to consider first

The case was previously adjourned

[6] This case was first scheduled to be heard by teleconference on August 10, 2022.^{Footnote 6} However, it had to be adjourned because I was ill.^{Footnote 7} The case was rescheduled and heard by teleconference on October 13, 2022.^{Footnote 8} Only the Claimant attended the hearing.

I asked the Commission for more information before the hearing

[7] The Commission referred to the employer’s “policy” in their submissions, but they did not include a copy of it in the file. So, I wrote to the Commission to ask them for a copy of the policy.^{Footnote 9} The Commission replied to my request and said that they did not obtain a copy of the policy from the employer.^{Footnote 10}

[8] I note that the Claimant was copied on the letter sent to the Commission. The Claimant replied to my request and provided the Tribunal with a copy of the provincial mandate: New Brunswick’s Regulation 2021-73 under the Public Health Act and Regulation 2021-74 under the Early Childhood Services Act which was imposed by her employer (provincial mandate).^{Footnote 11}

Issue

[9] Did the Claimant lose her job because of misconduct?

Analysis

[10] The law says that you cannot get EI benefits if you lose your job because of misconduct. This applies when the employer has let you go or suspended you.^{Footnote 12}

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

Why did the Claimant lose her job?

[12] I find that the Claimant lost her job on November 19, 2021 because she went against her employer’s direction to comply with the provincial mandate. This is consistent with the Claimant’s testimony, the record of employment and termination letter in the file.^{Footnote 13}

[13] Specifically, the Claimant agrees that she did not comply with the requirement to be vaccinated for covid19 by November 19, 2021 and that was the reason she was dismissed.

Is the reason for the Claimant’s dismissal misconduct under the law?

[14] The Employment Insurance Act (EI Act) does not say what misconduct means. But case law (decisions from courts and tribunals) shows us how to determine whether the Claimant’s dismissal is misconduct under the EI Act. It sets out the legal test for misconduct—the questions and criteria to consider when examining the issue of misconduct.

[15] Case law says that, to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 14} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 15}

[16] The Claimant does not have to have wrongful intent (in other words, she does not have to mean to be doing something wrong) for her behaviour to be misconduct under the law.^{Footnote 16}

[17] There is misconduct if the Claimant knew or should have known that her conduct could get in the way of carrying out her duties toward her employer and that there was a real possibility of being let go because of that.^{Footnote 17}

[18] The law does not say I have to consider how the employer behaved.^{Footnote 18} Instead, I have to focus on what the Claimant did or failed to do and whether that amounts to misconduct under the EI Act.^{Footnote 19}

[19] I have to focus on the EI Act only. I cannot make any decisions about whether the Claimant has other options under other laws. Issues about whether the Claimant was wrongfully dismissed or whether the employer should have made reasonable arrangements (accommodations) for the Claimant are not for me to decide.^{Footnote 20} I can consider only one thing: whether what the Claimant did or failed to do is misconduct under the EI Act.

[20] The Commission has to prove that the Claimant lost her 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 Claimant lost her job because of misconduct.^{Footnote 21}

[21] The employer told the Commission that the provincial government imposed a vaccination mandate for all daycare staff and that the deadline to be vaccinated covid19 was November 19, 2021.^{Footnote 22} The employer told the Commission that employees were notified of the provincial vaccine mandate in August 2021 verbally and via email.^{Footnote 23}

[22] I note that the employer did not have a separate policy at work, but instead was following the provincial mandate. This was legally binding on the employer, who operated as a child care centre.

[23] As noted above, the Claimant provided the Tribunal a copy of the provincial mandate (New Brunswick’s Regulation 2021-73 under the Public Health Act and Regulation 2021-74 under the Early Childhood Services Act).^{Footnote 24}

[24] I find that the Commission has proven that there was misconduct for the following reasons.

[25] First, the Claimant testified and agreed that the employer communicated the provincial regulations verbally and by group messenger. The Claimant also had enough time to comply.

[26] Second, the Claimant knew that if she did not follow the employer’s direction to comply with the provincial mandate and was not vaccinated for covid19 by November 19, 2021, that she would be dismissed. While, she did ask the employer for a leave of absence, her request was denied.

[27] I acknowledge that the Claimant only received a copy of the provincial mandate on her last day of work. However, she was already aware of the employer’s expectations, namely that she had to be vaccinated for covid19 by November 19, 2021.^{Footnote 25}

[28] Third, the Claimant wilfully and consciously decided to not comply with the provincial mandate for her own personal reasons. She knew the risk and that it would lead to her dismissal on November 19, 2021.^{Footnote 26}

[29] The Claimant was not exempt from the provincial mandate. I acknowledge that she asked for a religious exemption^{Footnote 27} but it was denied by Department of Education and Early Childhood Development on October 18, 2021, so she knew that she had to comply and still had enough time to do so.^{Footnote 28} As well, even though she had some medical concerns, she was unable to obtain a medical exemption because they were not available.

[30] The Claimant made deliberate choice to not comply with the provincial mandate. The Federal Court of Appeal has already said that a deliberate violation of the employer’s policy (the employer’s direction in this case) is considered misconduct based on the EI Act.^{Footnote 29} Even though the Claimant did not have wrongful intent, it was still misconduct.

[31] I was not persuaded by the Claimant’s argument that being vaccinated for covid19 was not a requirement of her job. Even so, the Federal Court of Appeal has said that misconduct can include a breach of an express or implied duty in an employment contract.^{Footnote 30} The employer was bound by provincial mandate imposed by the covid19 pandemic, so it became a condition of her continued employment.

So, did the Claimant lose her job because of misconduct?

[32] Based on my findings above, I find that the Claimant lost her job because of misconduct. This is because the Claimant’s actions led to her dismissal. She knew the risk and that it would lead to her dismissal.

[33] I acknowledge the Claimant’s additional arguments, specifically that the employer had a duty to accommodate, she was not offered alternatives, such as working from home or rapid testing and that the denial of her religious exemption was against her human rights.^{Footnote 31}

[34] However, the Claimant’s recourse is to pursue an action in court, or any other Tribunal that may deal with her particular arguments in order to get the remedy she is seeking.^{Footnote 32}

Conclusion

[35] The Commission has proven that the Claimant lost her job because of misconduct. Because of this, the Claimant is disqualified from receiving EI benefits.

[36] This means that the appeal is dismissed.