Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Canada Employment Insurance Commission (Commission) has proven that the Claimant was suspended and lost his job because of misconduct (in other words, because he did something that caused him to be suspended and lose his job). This means the Claimant was disentitled from Employment Insurance (EI) benefits from November 28, 2021, to December 31, 2021, and disqualified from receiving EI benefits from January 2, 2022.^{Footnote 1}

Overview

[3] The Claimant was placed on an unpaid leave of absence from his job as a Distribution Engineer on October 29, 2021, and lost his job on January 4, 2022. The Claimant’s employer (“X”) said the Claimant was placed on an unpaid leave of absence and then let go because he failed to comply with their vaccination policy.

[4] The Commission accepted the employer’s reason for the unpaid leave of absence (suspension) and dismissal. It decided that the Claimant was suspended and lost his job because of misconduct. Because of this, the Commission decided the Claimant was disentitled from EI benefits from November 28, 2021, to December 31, 2021, and disqualified from receiving EI benefits from January 2, 2022.

[5] The Commission says the Claimant willfully refused to comply with the employer’s vaccination policy knowing he would be dismissed.

[6] The Claimant says there was no misconduct on his part. He says the employer changed his employment contract and their vaccination policy wasn’t reasonable.

Issue

[7] Was the Claimant suspended and dismissed because of misconduct?

Analysis

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

Why was the Claimant suspended and dismissed?

[9] I find the Claimant was suspended and dismissed because he failed to comply with the employer’s vaccination policy.

[10] The Commission says the reason the employer gave is the reason for the suspension and dismissal. The employer told the Commission that the Claimant didn’t comply with their vaccination policy.

[11] The Claimant doesn’t dispute that he was suspended and dismissed for failing to comply with the employer’s vaccination policy. However, the Claimant says the employer’s vaccination policy wasn’t reasonable.

[12] I find the Claimant was suspended and then dismissed from his job for failing to comply with the employer’s vaccination policy.

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

[13] The reason for the Claimant’s suspension and dismissal is misconduct under the law.

[14] To be misconduct under the law, 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}

[15] 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 suspended and let go because of that.^{Footnote 5}

[16] The Commission has to prove that the Claimant was suspended and 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 was suspended and lost his job because of misconduct.^{Footnote 6}

[17] The Commission says there was misconduct because the Claimant willfully refused to comply with the employer’s vaccination policy knowing he would be terminated from his employment.

[18] The Claimant says there was no misconduct, because the employer changed the employment contract and their vaccination policy was unreasonable.

[19] I find the Commission has proven there was misconduct, because they showed the Claimant was fully aware of the employer’s vaccination policy and the consequences for failing to comply with this policy (GD3-25). Furthermore, the Commission provided a copy of the employer’s vaccination policy which stated that employees who failed to comply with the policy might be subject to discipline up to and “including termination” (GD3-40 to GD3-45). I realize the Claimant testified that the employer changed his employment contract and their vaccination policy was unreasonable. However, the matter of determining whether the employer’s vaccination policy was fair or reasonable wasn’t within my jurisdiction. In short, other avenues existed for the Claimant to make these arguments.^{Footnote 7}

Additional Testimony from the Claimant

[20] I recognize the Claimant further testified that he took legal action against his employer and was awarded severance monies. The Claimant further explained the employer amended his Record of Employment and the document now stated dismissed without cause. Nevertheless, the only issue before me was whether the Claimant was suspended and dismissed for misconduct. On this matter, I must apply the EI Act and the legal test for misconduct as documented above. In other words, I cannot ignore the law even for sympathetic reasons.^{Footnote 8}

[21] Finally, I realize the Claimant argued the employer had reasonable alternatives to implementing their vaccination policy. However, as mentioned the matter of determining whether the employer’s policy was unfair or unreasonable was beyond my jurisdiction.^{Footnote 9}

So, was the Claimant suspended and dismissed because of misconduct?

[22] Based on my findings above, I find the Claimant was suspended and lost his job because of misconduct.

Conclusion

[23] The Commission has proven the Claimant was suspended and lost his job because of misconduct. Because of this, the Claimant was disentitled from EI benefits from November 28, 2021, to December 31, 2021, and disqualified from receiving EI benefits from January 2, 2022.

[24] This means the appeal is dismissed.