Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant (Claimant) lost her job because she did not comply with the employer’s COVID-19 vaccination policy (Policy). The employer refused her request for an exemption based on religious beliefs. The Claimant then applied for Employment Insurance (EI) regular benefits. The Respondent (Commission) determined that the Claimant lost her job because of misconduct, so it was not able to pay her benefits. After an unsuccessful reconsideration, the Claimant appealed to the General Division.

[3] The General Division found that the Claimant lost her job following her refusal to follow the employer’s Policy. It found that her request for exemption based on her religious beliefs was denied. It found that the Claimant knew that the employer was likely to dismiss her in these circumstances. The General Division concluded that the Claimant was dismissed from her job because of misconduct.

[4] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that the General Division made an error in concluding that she lost her employment because of misconduct and that it should have applied the voluntary leave section of the law. She submits that she was harassed by her employer and unfairly denied a religious exemption. She submits that her employer acted in bad faith by not allowing her religious exemption. She submits that the General Division should have exercised its jurisdiction to decide that her religious beliefs justified her request for an exemption, and that the employer’s Policy was unreasonable and violated her collective agreement. She puts forward that the employer’s Policy is unlawful, ill-conceived and abusive.

[5] I must decide whether the Claimant has raised some reviewable error of the General Division upon which the appeal might succeed.

[6] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

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

Analysis

[8] 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.

[9] 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 her 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.

[10] 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?

[11] The Claimant submits that the General Division made an error in concluding that she lost her employment because of misconduct and that it should have applied the voluntary leave section of the law. She submits that she was harassed by her employer and unfairly denied a religious exemption. She submits that her employer acted in bad faith by not allowing her religious exemption. She submits that the General Division should have exercised its jurisdiction to decide that her religious beliefs justified her request for an exemption, and that the employer’s Policy was unreasonable and violated her collective agreement. She puts forward that the employer’s Policy is unlawful, ill-conceived and abusive.

[12] The Claimant argues that section 29(c) of the Employment Insurance (EI) Act applies to her situation.

[13] In support of her application for employment insurance, the Claimant stated that she was dismissed by her employer following her refusal to follow the employer’s Policy. The Claimant's Record of Employment indicates that it was produced because of a dismissal. The Claimant told the Commission on several occasions that she had been fired.

[14] It is clear from the evidence that the Claimant did not voluntarily leave her employment. The employer ended the Claimant’s contract of employment. Therefore, section 29(c) of the EI Act does not apply in her case.

[15] The General Division had to decide whether the Claimant lost her job because of her misconduct.^{Footnote 1}

[16] 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.

[17] 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 dismissing the Claimant in such a way that her dismissal was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to her dismissal.^{Footnote 2}

[18] The General Division determined that the Claimant lost her job because she refused to be vaccinated in accordance with the employer’s Policy. She had been informed of the employer’s Policy and was given time to comply. She was not granted an exemption. The Claimant refused intentionally; this refusal was wilful. This was the direct cause of her dismissal.

[19] The General Division found that the Claimant knew that her refusal to comply with the Policy could lead to her dismissal.

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

[21] It is well-established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the EI Act.^{Footnote 3}

[22] The Claimant submits that the General Division refused to exercise its jurisdiction on the issues of whether the employer failed to accommodate her, and whether the employer’s Policy was unreasonable and violated her rights. She submits that she had proven to the employer that her request for an exemption was based on her religious beliefs.

[23] 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. The 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.

[24] The mere fact that the employer has instituted a policy during the pandemic with which the Claimant disagrees does not constitute harassment.^{Footnote 4}

[25] I find no reviewable error in the General Division’s determination that it has no jurisdiction to decide questions about the vaccine’s effectiveness or the reasonableness of the Policy. The question of whether the employer failed to accommodate her, or whether the employer’s Policy was unreasonable and violated the Claimant’s rights or whether the employer should have accepted her request for an exemption based on her religious beliefs, is a matter for another forum. This Tribunal is not the appropriate forum through which the Claimant can obtain the remedy that she is seeking.^{Footnote 5}

[26] In the recent Paradis case, the Claimant was refused EI benefits because of his 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. The 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.

[27] 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 her being dismissed from work.

[28] 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 6}

[29] I am fully aware that the Claimant may seek relief before another forum, if a violation is established.^{Footnote 7} This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant lost her job because of her misconduct.

[30] In her 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. She 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.

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

Conclusion

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