Employment Insurance (EI)

Decision

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

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

Overview

[3] The Claimant was suspended from his job. The Claimant’s employer says that he was put on a leave of absence because he didn’t respect its COVID-19 vaccination policy: he didn’t say whether he had been vaccinated.

[4] Even though the Claimant doesn’t dispute that he didn’t disclose his vaccination status he says that going against his employer’s vaccination policy isn’t misconduct. He was put on a leave of absence against his will.

[5] The Commission accepted the employer’s reason for the leave of absence. It decided that the Claimant was suspended because of misconduct. Because of this, the Commission decided that the Claimant is disentitled from receiving EI benefits.

Matters I have to consider first

The appeal is not being summarily dismissed

[6] Subsection 53(1) of the Department of Employment and Social Development Act (DESD Act) says that the General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

[7] Section 22 of the Social Security Tribunal Regulations says that before summarily dismissing an appeal, the General Division must give notice in writing to the Appellant and allow the Appellant a reasonable period of time to make submissions.

[8] In this case, I advised the Claimant on August 5, 2022 that I was considering summarily dismissing this appeal. The Claimant provided a written response on August 7, 2022.

[9] In light of the Claimant’s response, I decided that there was a reasonable chance of the appeal being successful. So, the appeal is not summarily dismissed. A hearing was heard on the merits of the claim and this decision deals with the matter on its merits.

The Employer is not a party to the appeal

[10] Sometimes the Tribunal sends the Claimant’s former employer a letter asking if they want to be added as a party to the appeal. In this case, the Tribunal sent the employer such a letter. The employer did not reply to the letter.

[11] To be an added party, the employer must have a direct interest in the appeal. I have decided not to add the employer as a party to this appeal, as there is nothing in my file that suggests that my decision would impose any legal obligations on the employer.

Issue

[12] Was the Claimant suspended from his job because of misconduct?

Analysis

[13] The law says that you can’t get EI benefits if you lose your job because of misconduct. This applies when the employer has let you go or suspended you.^{Footnote 2}

[14] 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 was put on leave from his job. Then, I have to determine whether the law considers that reason to be misconduct.

Why did the Claimant lose his job?

[15] I find that the Claimant was suspended from his job because he went against his employer’s vaccination policy.

[16] The Claimant and the Commission don’t entirely agree on why the Claimant was put on an involuntary leave of absence (suspended) from his job. The Commission says that the reason the employer gave is the real reason for the leave. The employer told the Commission that the Claimant didn’t comply with their mandatory COVID-19 vaccination policy because he did not disclose his vaccination status.

[17] The Claimant is less clear on why he was put on leave. The Claimant originally told the Commission that he did not disclose his vaccination status. Then, when asking for his file to be reconsidered, he said he was placed on leave for not taking the vaccine. When filing his appeal, the Claimant said he refused to comply when his employer breached his contract. Finally, at the hearing, the Claimant said that when he was turned away from work, he did not know why he had been suspended.

[18] I find that the Claimant was suspended because he did not comply with his employer’s mandatory vaccination policy.

[19] The employer’s policy required that all employees actively at work attest to their vaccination status by November 12, 2021. If they refuse to disclose their vaccination status, they would be considered Unwilling to be fully vaccinated and be placed on leave without pay after November 26, 2021.

[20] This is what happened to the Claimant. The Claimant admits he did not attest to his vaccination status. He was put on a leave of absence as of November 29, 2022. So, I find the Claimant was put on leave, or suspended from his job because he did not comply with his employer’s vaccination policy.

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

[21] The reason for the Claimant’s dismissal is misconduct under the law.

[22] The Employment Insurance Act (Act) doesn’t define 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 Act. It sets out the legal test for misconduct—the questions and criteria to consider when examining the issue of misconduct.

[23] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 3} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 4} 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 5}

[24] 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 6}

[25] The law doesn’t say I have to consider how the employer behaved.^{Footnote 7} Instead, I have to focus on what the Claimant did or failed to do and whether that amounts to misconduct under the Act.^{Footnote 8}

[26] I have to focus on the 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 9} I can consider only one thing: whether what the Claimant did or failed to do is misconduct under the Act.

[27] 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 10}

[28] The Commission says that there was misconduct because the Claimant failed to obey the employer’s instructions which resulted in his being placed on a leave without pay, which is considered a suspension.

[29] The Claimant says that there was no misconduct because his employer’s policy was unreasonable and overreaching. The conditions of his employment were set when he was hired and his employer breached his collective agreement. He said he did look into whether he could get accommodation from his employer, but this was after he was put on a leave of absence. 

[30] The Claimant has given me evidence including a letter directed to the minister responsible for EI as well as a petition put before Parliament with respect to codes on Records of Employment for those who are affected by restrictions to EI. While I have reviewed these documents, I can only apply the laws as they are in force at this time, so I find these documents are not relevant to the question of whether or not the Claimant’s actions were misconduct.

[31] The employer’s vaccination policy says that by November 12, 2021, all employees actively at work must attest to their current vaccination status. Employees who do not attest to their vaccination status will be considered unwilling to be fully vaccinated and place on leave without pay after November 26, 2021.  

[32] There is no disagreement that the Claimant did not disclose his vaccination status to his employer. So I find that he did breach his employer’s policy. The next question then is whether he did this wilfully.

[33] At the hearing the Claimant argued that when he showed up at work on November 29, 2021, he did not know why he was not allowed to enter the building to work. He said that was the first time he was hearing about what he now calls his employer’s “practice”.

[34] I do not find that the Claimant’s testimony at the hearing was credible. First, his testimony is not consistent with the statements that he had made to the Commission in the past. The Commission’s notes say that he told it he knew about the policy and he knew he could be put on leave if he did not comply with the policy.

[35] Secondly, I find it is highly unlikely that an employee of a public, federally regulated corporation would, as he said, be completely ignorant of the employer’s vaccination policy and related obligations.

[36] The employer told the Commission that on October 28, 2020 all staff were sent a message to all employees outlining their obligations under the policy, the deadlines for attesting and vaccination and the consequences of not complying. They also confirmed the Claimant did not ask for any accommodation under the policy.

[37] The Claimant said at the hearing that he doesn’t have a television and that he spent hardly any time at the work facilities. He did read notice boards or talk to other employees. He would work delivering mail on his own with little contact with other people. He said that no supervisor told him about the policy. However, he also testified that a supervisor told him he would have to call and attest and that there was general discussion about a mandate. He was also aware of changes at work because his arrival time at the sorting facility was moved around because of COVID distancing protocols.

[38] The Claimant also mentioned that he received a letter from his employer by mail before he was put on leave, but that the letter he received had someone else’s name on it so he returned it without looking at it. He did not talk to his employer or colleagues about the letter, or ask what it might have been about, although he says he received an apology letter later. He also said that in December 2021 he received a letter in the mail from his employer, but he did not open it.

[39] The reason I note these points is because a claimant’s conduct may be considered misconduct if it is so reckless as to be wilful. When an employee appears to be intentionally uniformed of their employer’s policies, particularly when they are widely discussed in the general public, they deliberately place themselves in a position where they may not be able to fulfil their obligations to their employer. I find that if this is how the Claimant was behaving, his conduct is so reckless as to be considered misconduct.

[40] Finally, I also note that the Claimant has raised several arguments as to why he does not agree with his employer’s vaccination policy and why he should not have to comply with it. He confirmed that he did not want to disclose his vaccination status to his employer and he felt he should be exempt from vaccination. He does not agree that vaccination helps and that the policy is a breech of his employment conditions.

[41] The Commission’s notes also show that the Claimant told them that he was aware of the policy in place but was not willing to disclose his personal medical information as it was against his rights. He understood that he could be placed on leave for not complying but he did not agree too or ask for that leave. 

[42] The Claimant’s arguments against the policy lead me to conclude that he had made a choice not to accept or comply with his employer’s vaccination policy. As mentioned above, I do not believe that he was completely unaware of his employer’s policy and while he may have disagreed with the employer putting him on leave, he knew that could happen. So, the conduct of refusing to comply with the policy was done with the knowledge of the policy and the consequences of not complying. This is misconduct.

[43] I find that the Commission has proven that there was misconduct, because the Claimant made the choice not to comply with his employer’s policy even though he knew it could lead to a leave of absence. If he did not know about the consequences of the policy, this was because he was recklessly avoiding becoming informed of the new policy even thought respecting employer policies is vital to his employment. The Claimant was involuntarily placed on leave (suspended) because he did not comply with the requirement to disclose his vaccination status, as set out in the policy.

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

[44] Based on my findings above, I find that the Claimant was placed on an involuntary leave of absence (suspended) because of misconduct.

[45] This is because the Claimant’s actions led to his dismissal. He acted deliberately. He should have known that refusing to say whether he had been vaccinated was likely to cause him to lose his job.

Conclusion

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

[47] This means that the appeal is dismissed.