Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Tribunal agrees with the Claimant.

[2] The Canada Employment Insurance Commission (Commission) hasn’t proven that the Claimant lost her job because of misconduct (in other words, because she did something wrong that caused her to lose her job). This means that the Claimant isn’t disqualified from receiving Employment Insurance (EI) benefits.^{Footnote 1}

Overview

[3] The Claimant lost her job. The Claimant’s employer says that she was let go because she decided not to be vaccinated against Covid-19 contrary to its policy.

[4] Even though the Claimant doesn’t dispute that this happened, she says that her choice to not be vaccinated isn’t misconduct regardless of her Employer’s policy.

[5] The Commission accepted the employer’s reason for the dismissal. It decided that the Claimant lost her job because of misconduct. Because of this, the Commission decided to disqualify the Claimant from receiving EI benefits.

Issue

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

Analysis

[7] 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}

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

Why did the Claimant lose his/her job?

[9] I find that the Claimant lost her job because she chose not to be vaccinated and was in non-compliance with her Employer’s policy.

[10] The Commission says that the Claimant was dismissed on October 7, 2021, for non-compliance with the Employer’s Covid-19 Vaccination Policy. No termination letter was provided by the Commission supporting the reason for dismissal, however, communication between the Commission and the Employer confirms that the reason for the Claimant’s dismissal is non-compliance with the policy.

[11] The Claimant does not dispute that she was dismissed because she did not get vaccinated by the deadline provided for in the Employer’s policy. She did not offer any other reason that may account for her dismissed, so I accept that the reason for her dismissal was non-compliance with the Employer’s policy.

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

[12] The reason for the Claimant’s dismissal is not misconduct under the law.

[13] The Employment Insurance Act (Act) doesn’t say 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.

[14] There are three specific elements that the Commission must prove in order to substantiate that the Claimant’s actions are misconduct under the Act.

[15] Case law says that, to be misconduct;

• The conduct has to be willful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 3} Misconduct also includes conduct that is so reckless that it is almost willful.^{Footnote 4} 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 5}
• There must be a breach on an expressed or implied duty arising out of her employment contract.^{Footnote 6}
• 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 7}

[16] The law doesn’t say I have to consider how the employer behaved.^{Footnote 8} Instead, I have to focus on what the Claimant did or failed to do and whether that amounts to misconduct under the Act.^{Footnote 9}

[17] 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 10} I can consider only one thing: whether what the Claimant did or failed to do is misconduct under the Act.

[18] 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 11}

[19] The Commission says that there was misconduct because

• the employer created a vaccination policy
• the employer notified the Claimant about its expectations about getting vaccinated
• the employer e-mailed the Claimant to communicate what it expected
• the Claimant decision not to get vaccinated was a personal choice and intentional
• the Claimant’s actions constituted a breach of an expressed or implied duty arising out of the contract of employment.
• the Claimant knew or should have known that she would lose her job if she did not comply with the Employer’s policy and get vaccinated

[20] The Claimant says that there was no misconduct because

• her decision to not get vaccinated was a personal one based on a previous serious reaction to the flu vaccine.
• the employer’s vaccination policy was unfair went against the law
• she was in compliance with all Covid-19 protocols that existed prior to the vaccination policy

[21] The Commission decided that the Claimant lost her employment by her own misconduct and issued a disqualification effective November 7, 2021.

[22] Disqualification is seen as a form of “punishment” for undesirable conduct.^{Footnote 12}

Breach on an expressed or implied duty arising out of her employment contract.

[23] I find that the Commission hasn’t proven that there was misconduct because it has not been demonstrated that there was either an expressed or implied duty for the Claimant to get vaccinated arising out of her employment contract.

[24] The Commission submits that there was a breach of an expressed or implied duty arising out of the Claimant’s employment contract. This is one of the three elements that the Commission must prove in order for a finding of misconduct.

[25] An employment contract is just that, a contract. It is an agreement between parties that details the obligations both parties owe each other. Neither can unilaterally impose new conditions to the collective agreement without the acceptance of the other. The only exception to this would be an obligation arising out of legislation.

[26] The Commission submitted a copy of the Employer’s Covid-19 Vaccine Policy.

[27] The Employer’s vaccination policy details that all staff must have their first dose of Covid-19 vaccine no later than September 22, 2021, or provide a medical or Human Rights Code exemption. Staff that had not received their first dose by October 7, 2021, shall have their employment terminated. The policy offers no other options to vaccination, such as continued testing for unvaccinated staff.

[28] The Commission says that the Claimant willfully failed to comply with the Employer’s vaccination policy. It says that she knew or ought to have known that not taking the vaccination would result in her dismissal. It affirms that there must be a causal link between the “misconduct” and the employment and concludes that the “misconduct” must constitute a breach of an expressed or implied duty arising from the contract of employment. It quotes a Federal Court of Appeal (FCA) case in support of its decision regarding misconduct.^{Footnote 13}

[29] The Claimant both submitted and testified that the reason she did not get vaccinated was because she had a serious reaction to a previous flu vaccination. She was very concerned about her health if she had a reaction to the Covid-19 vaccine. Her doctor had previously confirmed in a note that she should not receive the flu vaccination again.^{Footnote 14}

[30] The Claimant said that her doctor offered to provide her an exemption for the Covid-19 vaccination but she did not request one because she did not think she would need it. Later, when she again asked the doctor for an exemption, he refused to grant it because she did not fit within the public health authority’s criteria for exemption eligibility.

[31] The Claimant says that she followed all the Employer’s Covid-19 protocols that existed prior to the implementation of the vaccination policy. She asserted that she was willing to continue following those protocols to maintain her employment. Shortly after the vaccine policy was introduced, the Claimant saw her doctor about her health issues and obtained a sick note. While the Claimant was on sick leave, she received her dismissal notice by mail on October 7, 2021.

[32] The Claimant admitted to receiving the policy by e-mail while she was off work. She was aware of its contents, including the ultimate consequence of dismissal if she chose not to get vaccinated. I am satisfied that the Claimant knew about and understood the policy requirements and the consequences of non-compliance. She does not dispute non-compliance with the Employer’s policy. She does dispute that there is a duty to get vaccinated arising out of her employment agreement.

Is there an expressed duty arising out of her employment contract?

[33] I find that the Commission has not shown that an expressed duty detailed in an employment contract existed that would support the premise that the Claimant was obligated to get vaccinated against Covid-19.

[34] An expressed duty is something specifically noted in an employment contract or of such a fundamental nature, it is obvious that it exists. In other words, the employment agreement would need to contain an explicit expectation that the Claimant be vaccinated against specific ailments and that the Claimant agreed to the requirement at her hiring or at some time later during her employment prior to her dismissal.

[35] The Claimant worked in a hospital as a nurse. She confirmed that she was unionized employee working under a collective agreement. She stated that there was no provision within her Collective Agreement that requires her to be vaccinated against Covid-19. She says she never agreed to be vaccinated.

[36] The Commission submitted a copy of the Employer’s vaccination policy and submits that non-compliance with the policy constitutes a breach of a duty owed the Employer arising from her employment contract.

[37] The Commission did not submit a copy of an employment contract. As a unionized and represented employee, the Claimant worked under the provisions of a negotiated collective agreement. The Commission did not submit a copy of that collective agreement nor make any reference to a provision within that collective agreement that supports the obligation imposed by the vaccination policy. There is no evidence of a resolution between the Employer and the Bargaining Agent (Union) that suggests it agreed to a new essential condition of employment imposed upon the Claimant and others within the bargaining unit.

[38] To that end, there is no evidence that there existed any expressed (explicit) requirement that the Claimant accept vaccination for Covid-19, nor any other type of vaccination or medical treatment that the Employer might require. It offered no evidence in the form of an employment contract or memorandum of understanding from which to draw a conclusion there was an expressed duty. There is no evidence that the Claimant agreed to be bound within her employment agreement by a vaccination requirement. There is no evidence that the Claimant’s bargaining agent negotiated with the Employer and agreed to the Employer’s vaccination policy.

Is there an implied duty arising out of her employment contract?

[39] I find that the Commission has not shown that an implied duty existed within her collective agreement or other employment contract that the Claimant accept vaccination.

[40] An implied duty would be something one can infer from an employment agreement that would cover instances not specifically (expressly) detailed. There was no evidence presented by the Commission that the Claimant was required by a blanket requirement or expectation to accept all the Employer’s policies that one could reasonably infer covered a vaccination requirement.

[41] The requirement to accept medical treatment in order to maintain employment goes far beyond a simple expectation to comply with health and safety protocols. This is not the same as expecting an employee to wash their hands before handling food or wearing a safety vest. To accept the premise that the employer can institute a policy demanding a specific type of medical treatment or face dismissal, changes a mere expectation of compliance with general health and safety protocols, to an essential condition of employment.

Imposed essential condition of employment

[42] There is no evidence that the Employer opened a negotiation with the bargaining agent, or specifically with the Claimant, to amend her employment agreement to include a vaccination requirement. There is no evidence that the Claimant explicitly agreed to the change or accepted to work under the policy before she was dismissed.

[43] In fact, it is clear that the Claimant was forthright and honest when she immediately challenged the policy and expressed her intention not to get vaccinated.

[44] Essentially, the Employer unilaterally reopened the Claimant’s employment agreement and imposed a new essential condition of employment without her consent. It is a change to the Claimant’s employment contract that established a new essential requirement (vaccination or valid exemption) in order to remain employed.

[45] In its submissions, the Commission specifically states that, “Since the Claimant was no longer meeting a condition of employment the Employer could not keep the Claimant employed.”^{Footnote 15} The Commission clearly agrees that the requirement to be vaccinated to remain employed became a condition of the Claimant’s employment.

[46] The requirement to be vaccinated or provide a valid exemption was not an essential condition of employment established at the time she was hired, nor agreed to by the Claimant at some time during her employment but prior to her dismissal. Therefore, it cannot be said that her employment contract contained a provision that established an expressed or implied duty to comply with the Employer’s vaccination policy.^{Footnote 16}

[47] The Commission submitted that the mere existence of a policy, which the Claimant failed to comply with, is enough to be a breach of a duty owed her employer. It supports its claim quoting FCA case “Lemire.”

[48] I am not satisfied that the circumstances upon which the Justices relied in “Lemire” are consistent with those in the Claimant’s case. In that case, the employee sold contraband cigarettes wearing his employment uniform on the employer’s premises in violation of the employer’s policy. While it is not specifically stated that the policy existed at the time of his hiring, the dismissed employee admitted he was aware of the policy, and it is apparent that he had willingly accepted and worked under that policy when he was caught. In other words, the policy existed as part of an employment contract he agreed to prior to the contravention that led to his dismissal.

[49] Further, it is evident that the Justices in “Lemire” referred to the provisions of the dismissed employee’s collective agreement to address issues surrounding the sanction applied. Clearly, the Justices benefitted from access to that collective agreement in considering the case.^{Footnote 17}

[50] In the present case, there was no policy in existence that the Claimant previously agreed to be bound by, nor did she accept the policy and work under it only to be in non-compliance at a later time. She expressed her unwillingness to accept the policy immediately upon its implementation and never agreed to be bound by it.

[51] Lastly, there is no evidence of either Federal or Provincial legislation that demands employees to be vaccinated against Covid-19 that then placed an obligation on both the Employer to apply the legislation requirements, and the Claimant to comply.

[52] Contrary to the Commission’s assertion, I am satisfied the Commission has not met the burden of proof to substantiate that the Claimant breached an expressed or implied duty owed the Employer when she chose not to be vaccinated or provide an exemption.

Other elements to support a conclusion of misconduct

[53] The Commission submits that the Claimant’s actions were willfully in that they were intentional and deliberate when she chose not to comply with her Employer’s vaccination policy.

[54] Further, it submits that she knew or ought to have known that her decision would lead to her dismissal.

[55] There is no dispute that the Claimant was both aware of the policy requirements and the likely consequences if she did not comply. She admits that her choice was a personal decision based on her personal health circumstances and her desire to protect her health.

[56] However, I find the neither her intent nor the knowledge of the consequences are relevant. All three elements as expressed above must be proven for a finding of misconduct.

[57] I have already found that the Commission has not met its burden to prove that there was a breach of an expressed or implied duty arising out of the Claimant’s employment contract.

[58] Regardless of whether the Claimant’s action can be characterized as willfully or that she knew her decision would likely lead to her dismissal, the Commission has not proven that she owed her Employer a duty to accept vaccination to remain employed. In fact, the Claimant had every right not to consent to the Employer’s unilateral demand.

Illegal policy

[59] The Claimant suggests that the Employer’s policy is illegal and violates her rights.

[60] As I noted above, it is not the actions of the Employer that are in question. Whether the Employer’s policy is legal or not is a matter to be addressed in another forum. My jurisdiction is limited to whether the Claimant’s actions are misconduct that warrants a disqualification from receiving EI benefits under the Act.

[61] However, since it is the Claimant’s conduct that is in question, I will examine the issue of legality of the Claimant choosing not to take the vaccine.

[62] The Claimant was clear that she was not defying her employer by choosing not to get vaccinated but simply expressing her interest in protecting her health. She says that she did nothing wrong that warranted dismissal.

[63] As I noted above, there is no Federal or Provincial legislation that demands Covid-19 vaccination. Therefore, since there is no legal obligation founded in legislation, vaccination is voluntary.

[64] It is both well founded and long recognized in Canadian common law that an individual has the right to control what happens to their bodies.^{Footnote 18} The individual has the final say in whether they accept any medical treatment.^{Footnote 19}

[65] The common law confirms that the Claimant has a legal basis or “right” to not accept any medical treatment which would include vaccination. If vaccination is therefore voluntary, it follows that she has a choice to accept or reject it. If she exercises a right not to be vaccinated, then it challenges the conclusion that her actions can be characterized as having done something “wrong” or “something she should not have done,” whether willfully or not, that would support misconduct and disqualification within the meaning of the EI Act?^{Footnote 20}

[66] The issue of the Covid-19 vaccinations and dismissals resulting from non-compliance is an emerging issue. No specific case law currently exists on the matter that guides decision makers.

[67] Indeed, I could not find a single case where a claimant did something for which a specific right, supported in law, exists, and that action was still found to be misconduct simply because it was deemed willful.

[68] In the absence of a FCA decision that provides such guidance, I am persuaded that the Claimant has a right to choose whether to accept any medical treatment. Despite that fact that her choice contradicts her Employer’s policy, and led to her dismissal, I find that exercising that “right” cannot be characterized as a wrongful act or undesirable conduct sufficient to conclude misconduct worthy of the punishment of disqualification under the Act.

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

[69] Based on my findings above, The Claimant did not lose her job because of misconduct under the Act.

[70] The Commission has not met the burden of proof to establish a finding of misconduct. It has not shown that there was a breach of an expressed or implied duty arising out of her employment contract.

[71] Further, given the common law right to choose whether to accept any medical treatment including vaccination, the Claimant’s decision not to be vaccinated is a reasonable and acceptable explanation supported in law for not complying with the Employer’s vaccine policy regardless of the outcome that she was dismissed and is not misconduct under the Act.

Conclusion

[72] The Commission hasn’t proven that the Claimant lost her job because of misconduct. Because of this, the Claimant isn’t disqualified from receiving EI benefits.

[73] This means that the appeal is allowed.