Employment Insurance (EI)

Decision

[1] S.  D. is the Claimant. The Canada Employment Insurance Commission (Commission) is refusing to pay Employment Insurance (EI) benefits. The Claimant is appealing this decision to the Social Security Tribunal (Tribunal).

[2] I am dismissing the Claimant’s appeal. I find that she lost her job because of misconduct, under the meaning of the Employment Insurance Act (EI Act). This means she can’t get EI benefits.

Overview

[3] The Claimant worked in health care. Her employer introduced a policy requiring all employees to be vaccinated against COVID-19. In some cases, employees could ask for an exemption from the policy. The Claimant didn’t ask the employer for an exemption, and she wasn’t vaccinated by the employer’s deadline. So, the employer put her on an unpaid leave of absence. After a few weeks, the employer dismissed her.

[4] The Commission says the Claimant lost her job because of misconduct. The Commission says she knew about the employer’s policy and she knew she could lose her job if she didn’t follow the policy. The Commission says she acted wilfully by refusing to follow the vaccination policy.

[5] The Claimant disagrees. She says her employer didn’t give her enough time to follow the policy. She says that she couldn’t get vaccinated for medical reasons. She also says the employer changed its vaccination policy so often that she didn’t know that she could lose her job if she didn’t follow the policy. And the Claimant also says the employer’s vaccination policy was unreasonable. She doesn’t think that vaccination is safe or effective.

Matter I have to consider first

The Claimant isn’t making a constitutional challenge

[6] The Claimant referred to the Charter of Rights and Freedoms in several of her arguments. At the hearing, I asked her for more information. The Claimant said she thinks her employer violated her Charter rights.

[7] But she said she didn’t have any arguments about whether the EI Act violates her Charter rights.

[8] So, I didn’t refer the Claimant’s appeal to the route of a constitutional challenge. I have decided to deal with her appeal through the normal appeal process.

Issue

[9] Did the Claimant lose her job because of misconduct?

Analysis

[10] The law says you can’t get EI benefits if you lose your job because of misconduct. This applies whether your employer has suspended or dismissed you.^{Footnote 1}

[11] To make a decision on this appeal, I have to look at two questions. First, I have to decide why the Claimant lost her job. Then, I have to decide if the law considers that reason to be misconduct.

Why did the Claimant lose her job?

[12] The Commission say the Claimant lost her job because she didn’t follow her employer’s vaccination policy.

[13] The Claimant agrees. She has always said that she stopped working because of the employer’s vaccination policy.

[14] There are also letters from the Claimant’s employer in the appeal file. One letter says that the Claimant’s employer is putting her on unpaid leave starting November 15, 2021 because she hasn’t followed the vaccination policy. Another letter says that the employer is terminating the Claimant on November 29, 2021 because she still hasn’t followed the employer’s vaccination policy.

[15] There isn’t any disagreement between the Claimant and the Commission about what caused the employer to suspend her and dismiss her. They both agree that she stopped working because she didn’t follow the employer’s vaccination policy. And there isn’t anything in the appeal file that makes me think she stopped working for any other reason.

[16] So, I find that the Claimant lost her job because she didn’t follow her employer’s vaccination policy. I find that her employer suspended her by putting her on an unpaid leave of absence starting November 15, 2021. And then I find that the employer dismissed her on November 29, 2021 for the same reason.

[17] Now, I must decide if the Claimant’s actions – failing to follow her employer’s vaccination policy – are misconduct under the meaning of the EI Act.

Is the reason the Claimant lost her job misconduct under the law?

[18] 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, she doesn’t have to mean to be doing something wrong) for her behaviour to be misconduct under the law.^{Footnote 4}

[19] There is misconduct if the Claimant knew or should have known that her conduct could get in the way of carrying out her duties toward her employer and that there was a real possibility of being let go because of that.^{Footnote 5}

[20] The Commission has to prove that the Claimant lost her 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 her job because of misconduct.^{Footnote 6}

[21] The Commission says the Claimant lost her job because of misconduct. The Commission says this is because she knew about her employer’s vaccination policy. The Commission says she knew that the policy said she could lose her job if she didn’t follow the policy. The Commission says she acted deliberately and wilfully when she didn’t follow the employer’s policy.

[22] The Claimant disagrees. The Claimant says that her employer didn’t give her enough time to follow the vaccination policy. She says that she couldn’t get vaccinated for medical reasons. She says the employer changed the policy so often that she didn’t expect that she would lose her job. She says that the vaccination policy was unreasonable and that the COVID-19 vaccine isn’t safe or effective.

[23] I disagree with the Claimant. I find that the Commission has proven that the reason she lost her job is misconduct under the meaning of the law.

[24] The Claimant has given different explanations of when and how she learned about the employer’s COVID-19 vaccination policy. She originally told the Commission that she knew about the employer’s policy by mid-October 2021. She didn’t say anything to the Commission about the length of time the employer gave her to read and understand its vaccination policy. The Claimant only said she didn’t have enough time to follow the policy after she appealed to the Tribunal.

[25] And the employer’s policy is in the appeal file. According to the policy, the employer first introduced its vaccination policy in August 2021. Then, the employer revised the policy on October 13, 2021. And the employer told the Commission that they notified all employees of the policy by email on October 13, 2021.

[26] I think the Claimant’s earlier statements to the Commission are more likely to be accurate. I also give a lot of weight to the date of the employer’s vaccination policy. I find that the Claimant had at least a month to read, understand, and follow the employer’s vaccination policy.

[27] I understand that the Claimant said she was on vacation later in October 2021. She says this made it difficult for her to follow the employer’s vaccination policy. But I don’t think the Claimant’s vacation means that she didn’t have enough time to understand the employer’s vaccination policy. In fact, at the hearing, the Claimant agreed that she got the updated October 13, 2021 vaccination policy before she left for her vacation. I think this means that the employer gave the Claimant enough notice of the policy and the expectations.

[28] The Claimant also says that the employer changed the policy so often that she didn’t think she was at risk of losing her job. But I don’t think this is reasonable. This is because I think the employer’s policy is clear. It says that all employees must be vaccinated against COVID-19 or have an approved exemption. The policy says the deadline to follow the policy is November 15, 2021. It says that employees who don’t follow the policy by the deadline will be put on unpaid leave and may face dismissal.

[29] So, I think the clear statements in the employer’s policy mean that the Claimant reasonably should have known there was a very real possibility that she could lose her job if she didn’t follow the policy.

[30] I can’t consider the Claimant’s arguments about the reasonableness of the employer’s vaccination policy.^{Footnote 7} And I can’t consider her arguments about the safety or effectiveness of the COVID-19 vaccine. I can’t consider whether her employer should have given her an exemption for medical reasons. The Claimant can pursue other measures through her union or a human rights tribunal if she wants to make these arguments.

[31] My only role is to decide if the reasons the Claimant stopped working are misconduct under the meaning of the EI act. And I find that the Commission has proven that the Claimant lost her job because of misconduct. This is because:

• The Claimant knew about her employer’s vaccination policy. She had at least a month to read, understand, and follow the employer’s policy. She knew the deadline for following the policy was November 15, 2021.
• She knew, or she reasonably should have known, that she could lose her job if she didn’t follow the policy. This is because the October 13, 2021 version of the policy said that she would be put on unpaid leave and could face dismissal if she didn’t follow the policy.
• She acted wilfully when she chose not to follow the employer’s vaccination policy.
• She lost her job as a direct result of her own actions. This is because she lost her job because she didn’t follow the employer’s vaccination policy.

[32] So, I find that the Claimant lost her job because of misconduct. I find that she isn’t entitled to EI benefits during her suspension from work, starting November 15, 2021. And I find that she is disqualified from receiving EI benefits starting November 28, 2021. This is because her employer dismissed her in this week.

Conclusion

[33] I am dismissing the Claimant’s appeal. I find that the Commission has proven that she lost her job because of misconduct. This means she can’t get EI benefits.