Employment Insurance (EI)

Decision

[1] P. D. is the Claimant. The Canada Employment Insurance Commission (Commission) decided that he couldn’t get Employment Insurance (EI) benefits. The Claimant is appealing this decision to the Social Security Tribunal (Tribunal).

[2] I am dismissing the Claimant’s appeal. I find that he stopped working because of misconduct, under the meaning of the Employment Insurance Act (EI Act). This means he can’t get EI benefits.

Overview

[3] The Claimant’s employer introduced a vaccination policy. The employer asked all employees to provide proof that they had been fully vaccinated against COVID-19. The Claimant didn’t give the employer information about his vaccination status and so his employer put him on unpaid leave. After several months, the employer dismissed him.

[4] The Commission says the reason the Claimant lost his job is misconduct under the law. The Commission says he knew about the employer’s policy but acted deliberately when he didn’t follow the policy. The Commission says the Claimant knew that he would be likely to lose his job if he didn’t follow the policy.

[5] The Claimant disagrees. He says his employer had policies that protected his medical privacy. He says that he was working from home and so his employer could have given him alternatives to providing information about his vaccination choices.

Issue

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

Analysis

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

[8] But, first I am going to explain why I am treating the Claimant’s initial loss of employment as a suspension.

Why did the Claimant stop working?

[9] The Claimant’s employer says the Claimant stopped working because he was on a leave of absence without pay. The Commission says that I should treat this as a suspension.

[10] At the hearing, the Claimant said he was on an unpaid leave of absence from November 23, 2021 until June 24, 2022. Then, he said his employer dismissed him.

[11] The Claimant said that he didn’t choose to leave his job. He said that the leave of absence was involuntary because it wasn’t his choice. He also said that he didn’t stop working because of a shortage of work. At the hearing, the Claimant said he considered his loss of employment as a form of dismissal.

[12] I agree with the Claimant and the Commission. I think the parts of the EI Act that talk about suspension and dismissal are the most suitable lens to look at the Claimant’s loss of employment. This is because the Claimant didn’t choose to leave his job and he didn’t stop work because of a shortage of work.

[13] So, I have to decide what caused the Claimant’s employer to suspend him and then dismiss him. Then, I have to decide if the Claimant’s actions are misconduct under the law.

Why did the Claimant’s employer suspend and then dismiss him?

[14] The Claimant and the Commission agree on the incident that caused his employer to suspend and then dismiss him.

[15] The Claimant and the Commission agree that the Claimant’s employer introduced a vaccination policy. The policy required all employees to give the employer information about their vaccination status.

[16] The Claimant felt that this violated his right to medical privacy. So, he didn’t give the employer information about whether he had been vaccinated against COVID-19. At the hearing, he said this was the reason the employer put him on leave, and then eventually dismissed him.

[17] So, the Claimant and the Commission agree that the Claimant didn’t give the employer information about whether he had been vaccinated against COVID-19. They agree that this was the reason for the employer’s decision to suspend and then dismiss the Claimant.

Is the reason for the Claimant’s loss of employment misconduct under the law?

[18] I find that the reason the Claimant lost his job is misconduct under the law.

[19] The law says that you can’t get EI benefits if you lose your job because of misconduct. This applies when the employer has fired you or suspended you.^{Footnote 1}

[20] The EI Act doesn’t 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.

[21] Case law says that, to be misconduct, 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 Claimant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.^{Footnote 4}

[22] There is misconduct if the Claimant 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 that.^{Footnote 5}

[23] The law doesn’t say I have to consider how the employer behaved.^{Footnote 6} 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 7}

[24] I have to focus on the EI Act only. I can’t 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 aren’t for me to decide.^{Footnote 8} I can consider only one thing: whether what the Claimant did or failed to do is misconduct under the EI Act.

[25] The Commission has to prove that the Claimant 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 Claimant lost his job because of misconduct.^{Footnote 9}

[26] The Commission says the Claimant lost his job because of misconduct. The Commission says he knew about the employer’s policy and he knew the consequences if he didn’t follow the policy. The Commission says he acted deliberately because he didn’t give the employer information about whether he was vaccinated against COVID-19.

[27] The Claimant disagrees. He says his employer had policies protecting his medical privacy. He says that he worked completely from home and so his employer could have accommodated him.

[28] I agree with the Commission. I find that the reason the Claimant’s employer suspended and then dismissed him amount to misconduct under the law.

[29] The Claimant and the Commission agree on the following basic facts:

• The Claimant’s employer introduced a policy that required all employees to provide information about whether they had been vaccinated against COVID-19.
• The deadline for providing this information was November 22, 2021.
• The policy said that anyone who didn’t follow the policy would be put on a leave of absence without pay and could be terminated.
• The Claimant didn’t give the employer information about whether he had been vaccinated against COVID-19. This was the direct cause of his suspension and then his dismissal.

[30] If I accept all the above facts as true, then I have to find that the Claimant stopped working because of misconduct. This is because he knew about the employer’s policy. He knew that he could lose his job if he didn’t follow the policy. But even so, he acted deliberately and didn’t follow the employer’s policy.

[31] I understand that the Claimant says his employer could have accommodated him. But it isn’t my role to decide if the employer acted unreasonably or if the policy was justified.^{Footnote 10}

[32] I also understand that the Claimant says he didn’t think his employer really would suspend or dismiss him because they were busy. But the Claimant agrees that the policy said he wouldn’t be allowed to keep working if he didn’t give the employer information about whether he was vaccinated against COVID-19. Given this policy, the Claimant reasonably should have known that losing his job was a very real possibility.

[33] The Claimant also says that the employer didn’t apply the policy equally to everyone. He says that some of his colleagues are still working. And he says the employer wasn’t clear about whether he was going to be dismissed or simply suspended indefinitely.

[34] But this doesn’t change my finding that the Claimant stopped working because of misconduct. There isn’t any evidence showing me that the employer applied the policy in a way that made it hard for the Claimant to know the consequences. Again, the Claimant agreed that the policy said that the employer would suspend him and that he could be dismissed. And this is what happened to him. I think he reasonably should have known that losing his job was a real possibility.

[35] So, I find that the reasons the Claimant stopped working amount to misconduct under the EI Act. He isn’t entitled to EI benefits while he was suspended. And then the Commission must disqualify him from the date the employer dismissed him. These decisions mean that he can’t get EI benefits.

Conclusion

[36] I am dismissing the Claimant’s appeal. I find that the Commission has proven that he lost his job because of misconduct.