Employment Insurance (EI)

Decision

[1] The appeal is allowed. The matter will go back to the General Division for reconsideration before a different member.

Overview

[2] The Appellant, M. S. (Claimant), is appealing the General Division decision. The General Division found that the Claimant lost her job because of misconduct. In other words, it found that she did something that caused her to lose her job. She had not complied with her employer’s vaccination policy that required her to be vaccinated against COVID-19.

[3] Having determined that there was misconduct, the General Division found that the Claimant was disqualified from receiving Employment Insurance benefits.

[4] The Claimant argues that the General Division made jurisdictional, legal, and factual errors. She says that the General Division failed to decide on the legality of her employer’s vaccination policy. She says that her employer’s vaccination policy violated human rights legislation and the Canadian Charter of Rights and Freedoms. She says that no policy is lawful if it supersedes human rights and the Constitution.

[5] The Claimant also argues that there was no misconduct in her case because she simply did not know that she could face dismissal if she did not follow her employer’s policy.

[6] The Claimant asks the Appeal Division to allow her appeal and find that there was no misconduct on her part.

[7] The Respondent, the Canada Employment Insurance Commission (Commission), argues that the General Division did not make any errors. The Commission asks the Appeal Division to dismiss the appeal.

Issue

[8] The issues in this appeal are:

1. a)  Did the General Division make a factual error regarding what and when the Claimant knew could be the consequences if she did not comply with her employer’s vaccination policy?
2. b)  Did the General Division misinterpret what misconduct means?

Analysis

[9] The Appeal Division may intervene in General Division decisions if there are jurisdictional, procedural, legal, or certain types of factual errors.^{Footnote 1}

[10] For factual errors, the General Division had to have based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Did the General Division make a factual error regarding what and when the Claimant knew could be the consequences if she did not comply with her employer’s vaccination policy?

[11] The Claimant argues that the General Division made a factual error about whether she knew what the consequences could be if she did not comply with her employer’s vaccination policy. She denies that she knew what the consequences could be if she did not comply with the policy. The Claimant argues that her case is like T.C.^{Footnote 2}and, for that reason, argues that there was no misconduct in her case either.

[12] In the T.C. case, the General Division there found that T.C. had not received sufficient notice of his employer’s vaccination policy, so he could not have been reasonably expected to comply with the policy. As well, T.C. did not know and could not have known the consequences of not complying with his employer’s policy. As a result, the General Division concluded that the Claimant’s conduct did not amount to misconduct. He was not disqualified from receiving Employment Insurance benefits.

[13] In the case before me, the General Division determined that misconduct arises if a claimant knew or should have known that their conduct could get in the way of carrying out their duties toward their employer and that there was a real possibility of being let go because of that.^{Footnote 3}

[14] The General Division found that the “Claimant was aware of the employer’s vaccination policy, was given time to comply, chose willingly and voluntarily not to comply and this was the immediate cause of her dismissal”.^{Footnote 4}

[15] The Claimant argues that her employer never clearly communicated its policy to her. She denies that she was aware that her employer could dismiss her if she did not get vaccinated. She says that, at most, her employer said that there would be consequences, without setting out what those consequences might be.

[16] The Commission submits that, as the employer indicated that all options would be considered, meant the Claimant knew, or should have known she could eventually be dismissed.^{Footnote 5}

Evidence at the General Division

[17] The evidence at the General Division consisted of the following:

• Employer’s email dated September 26, 2021, addressed to the Claimant. The employer told her that it required employees to get their first dose of the vaccine by the end of October 2021, and the second dose within four to six weeks later.
• The employer explained that this would be in keeping with the provincial health services’ mandate affecting all physicians, staff, and contracted employees. The employer’s email did not mention any consequences if any employees refused vaccination.^{Footnote 6}
• Employer’s email dated October 26, 2021. The employed confirmed that the Claimant had yet to be immunized. The employer noted that the provincial health services had extended the deadline for vaccination, so the employer also gave the same extension.
• However, the employer made it clear that, if the Claimant did not get vaccinated, it would “be forced to consider all options to best meet patients[’] needs safely in the long term”.^{Footnote 7} The employer did not describe the options.
• Supplementary Record of Claim dated March 4, 2022, documenting a phone call between the Claimant and an agent for the Commission. The Claimant reported that the employer introduced the policy around the end of August 2021. She received a copy of the policy by email.
• The employer’s policy required employees to provide proof of full vaccination by the end of November 2021. She reported that the employer explained that failure to comply with the policy could result in termination.^{Footnote 8}
• During the phone call, the Claimant agreed to provide a copy of the employer’s vaccination policy. She provided a copy of the employer’s emails of September 26, 2021, and October 26, 2021.
• Supplementary Record of Claim dated April 25, 2022, documenting a phone call between the Claimant and an agent for the Commission. The Claimant stated that “she understood the implications of not getting vaccinated, that she could lose her job.”^{Footnote 9}
• During the General Division hearing on June 22, 2022, the Claimant testified that she received a copy of her employer’s policy by email. She claims that she was unaware that she could be dismissed. She testified that her employer said that there would be consequences but did not specify what that meant.^{Footnote 10}

[18] At the Appeal Division hearing, the Claimant stated that it was at the end of November 2021 when she learned that she could be dismissed. This evidence did not arise before the General Division. The Appeal Division generally does not accept new evidence, so I cannot consider this. The Claimant explained that the General Division member did not ask her when she learned that her employer might dismiss her if she did not get fully vaccinated.

[19] There are two seeming discrepancies in the evidence:

1. i. What the employer’s actual policy was the Claimant said she received the policy around the end of August 2021,^{Footnote 11} yet when asked to provide a copy of the policy, she provided her employer’s two emails of September and October 2021.
2. Did the Claimant receive the employer’s policy around the end of August 2021? If so, what was it? Or did the two emails of September and October 2021 represent the employer’s policy?
3. ii. At the General Division hearing, the Claimant testified that she was unaware that she could be dismissed from her employer’s policy that she received by email. She noted that the email stated that there would be consequences, but it did not spell out what those consequences could be.
4. Yet, the General Division did not examine the Claimant’s evidence on this point, even though it conflicted with the Claimant’s statements to the Commission that she knew as early as possibly August 2021 that failure to comply with the policy could result in termination.^{Footnote 12}

[20] The Federal Court of Appeal has held that a careful analysis is required when there is conflicting evidence.^{Footnote 13} The General Division did not analyze, accept, reject, or otherwise explain why it preferred some of the evidence over others, which it was required to do.^{Footnote 14} The General Division should have addressed the conflicting evidence, as it could have been pivotal to the outcome.

[21] Given the nature of the error, it is unnecessary for me to address the balance of the Claimant’s arguments.

Remedy

[22] How can I fix the General Division’s error? I have two choices.^{Footnote 15} I can substitute my own decision, or I can refer the matter back to the General Division for a redetermination. If I substitute my own decision, this means I may make findings of fact.

[23] There are clear gaps in the evidence and the Claimant should be given the opportunity to address or explain these gaps. For that reason, it is appropriate to return the matter to the General Division.

Conclusion

[24] The appeal is allowed, and the matter returned to the General Division for a redetermination by a different member.