Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant (Claimant) was placed on an unpaid leave of absence from work because he did not comply with the employer’s COVID-19 policy (Policy). The Claimant then applied for Employment Insurance (EI) regular benefits.

[3] The Respondent (Commission) decided that the Claimant was suspended from his job because of misconduct. Because of this, the Commission decided that the Claimant is disentitled from receiving EI benefits. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[4] The General Division found that the employer put the Claimant on an unpaid leave of absence because he did not comply with their Policy. It determined that the Claimant was suspended following his refusal to follow the employer’s Policy. It found that the Claimant knew or should have known that the employer was likely to suspend him in these circumstances. The General Division found that the non-compliance with the Policy was the cause of his suspension and dismissal. It concluded that the Claimant was suspended and dismissed from his job because of misconduct.

[5] The Claimant is requesting leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that the General Division did not decides issues that it should have decided, erred by not considering the evidence before it, and by concluding that he was suspended because of misconduct.

[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.

Issue

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

Analysis

[9] 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. 1. The General Division hearing process was not fair in some way.
2. 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. 3. The General Division based its decision on an important error of fact.
4. 4. The General Division made an error of law when making its decision.

[10] 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 his 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.

[11] 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.

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

[12] The Claimant submits that the General Division did not consider that the employer acted contrary to the terms and conditions of his employment contract because they had no right to place him on an unpaid leave of absence. He submits that the General Division made an error in deciding that the unpaid leave of absence from his employer was a suspension. The Claimant submits that he did not expect termination considering that he offered to return to work remotely in a fashion that was consistent with the objectives of the Policy. He submits that his employer constructively dismissed him while falsely characterizing his reasonable response to their Policy as misconduct by colluding with the federal government via the Commission in order to deny him his EI benefits.

[13] The General Division had to decide whether the Claimant was suspended because of his misconduct.

[14] 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.

[15] 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 his suspension was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to his suspension.^{Footnote 1}

[16] The evidence shows that the Claimant was suspended (prevented from working) because he refused to follow the employer’s Policy. He had been informed of the employer’s Policy and was given time to comply. The Claimant refused intentionally; this refusal was wilful. This was the direct cause of his suspension. The General Division found that the Claimant knew or should have known that his refusal to comply with the policy could lead to his suspension.

[17] The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct.

[18] It is well established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the Employment Insurance Act (EI Act).^{Footnote 2}

[19] The Claimant submits that the General Division made a finding of misconduct notwithstanding that the Claimant’s employer did not “suspend” him, but rather placed him on an unpaid leave of absence.

[20] I see no reviewable error because it was up to the General Division to verify and interpret the facts of the present case and make its own assessment on the issue of misconduct under the EI Act. The evidence clearly shows that the employer stopped the Claimant from working because of his refusal to follow their Policy. Furthermore, an employer’s discipline procedure is irrelevant to determine misconduct under the EI Act.^{Footnote 3}

[21] The Claimant submits that given that he remained on leave without pay for seven months, he did not reasonably expect termination, especially that he offered to return to work remotely in a fashion consistent with the objectives of the Policy.

[22] The General Division took notice that the Claimant testified that he knew he could be placed on an unpaid leave of absence and possibly lose his job, if he did not follow the Policy. The General Division found that the Claimant ought to have know that losing his job was a real possibility.

[23] The Claimant submits that the General Division refused to exercise its jurisdiction on the issues of whether the employer failed to accommodate him, and whether the employer’s Policy violated his employment contract.

[24] It is not really in dispute that an employer has an obligation to take all reasonable precautions to protect the health and safety of its employees in their workplace. This Tribunal does not have the expertise or jurisdiction to decide whether the employer’s health and safety measures regarding COVID-19 where efficient or reasonable.

[25] The question of whether the employer failed to accommodate the Claimant by not allowing him to work from home, or whether the employer’s Policy violated his employment contract, is a matter for another forum. This Tribunal is not the appropriate forum through which the Claimant can obtain the remedy that he is seeking.^{Footnote 4}

[26] In the recent Paradis case, the Claimant was refused EI benefits because of misconduct. He argued that the employer’s policy violated his rights under the Alberta Human Rights Act. The Federal Court found it was a matter for another forum.

[27] The Federal Court also stated that there are available remedies for a claimant to sanction the behaviour of an employer other than transferring the costs of that behaviour to the Employment Insurance program.

[28] The preponderant evidence before the General Division shows that the Claimant made a personal and deliberate choice not to follow the employer’s Policy in response to the exceptional circumstances created by the pandemic and this resulted in him being suspended and dismissed from work.

[29] I see no reviewable error made by the General Division when it decided 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 5}

[30] I am fully aware that the Claimant may seek relief before another forum, if a violation is established.^{Footnote 6} 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 his misconduct.

[31] In his 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. He 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 on the issue of misconduct.

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

Conclusion

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