Employment Insurance (EI)

Decision

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

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

Overview

[3] The Claimant was suspended from her job. The Claimant’s employer says that she was suspended because she went against its vaccination policy: she didn’t say whether she had been vaccinated.

[4] Even though the Claimant doesn’t dispute that this happened, she says that going against her employer’s vaccination policy isn’t misconduct.

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

[6] The Commission also decided that the Claimant was disentitled from receiving EI regular benefits from November 16 to November 25, 2021, because she was outside Canada.

Matter I have to consider first

The Claimant agrees that she is not entitled to EI benefits while outside Canada

[7] Initially, the Claimant didn’t send copies of the Commission’s two reconsideration decisions, but she gave the date of one of the decisions. The Claimant didn’t use the Tribunal’s notice of appeal form, so it wasn’t clear if she was appealing both decisions. But, she didn’t refer to the outside Canada issue in her submissions.

[8] The Claimant sent a notice of appeal form to the Tribunal approximately two weeks later. She attached only the reconsideration decision on the issue of leave of absence/misconduct. At the hearing, she said she agrees with Commission’s decision that she is not entitled to EI benefits while she was outside Canada. So we did not address this at the hearing as an issue under appeal.

Issues

[9] Did the Claimant voluntarily take leave or was she suspended from her job?

[10] Was the Claimant suspended from her job because of misconduct?

Analysis

Did the Claimant voluntarily take leave or was she suspended from her job?

[11] The Claimant was suspended from her job.

[12] The law deals with dismissal for misconduct and voluntarily leaving without just cause together.^{Footnote 2} This is because both refer to actions a claimant has taken that result in the loss of employment.^{Footnote 3} The legal issue at stake for both is disqualification from receiving EI benefits.

[13] Sometimes it isn’t clear if a claimant is unemployed because they were dismissed or because they voluntarily left their job. In cases like those, since the legal issue at stake for both is the same in the law, based on the evidence, the Tribunal can decide the grounds for disqualification.^{Footnote 4}

[14] In this case, in its initial decision, the Commission said it couldn’t pay the Claimant EI benefits because she stopped working by voluntarily taking leave from her job. It maintained this decision on reconsideration.

[15] The Commission now says it can’t pay the Claimant EI benefits because she was suspended from her job. The Commission says it made a clerical error on the reconsideration decision; it should have changed the decision to suspension. The Commission notes that it explained this to the Claimant.

[16] The Claimant says she is on a forced leave of absence. She says she is not suspended or fired. She suggests her leave of absence should be treated as a lay-off.

[17] The Claimant’s employer issued a record of employment (ROE). It listed leave of absence as the reason it was issued. The employer sent information to the Commission about its COVID-19 vaccination policy. The employer had told employees that if they were not fully vaccinated by October 30, 2021, they would be subject to consequences of non-compliance. The employer said such employees would be placed on a leave of absence without pay.

[18] I find that the question of whether a claimant has voluntarily taken leave from a job or if their employer has suspended them from their job by placing them on unpaid leave is like the question of voluntarily leaving without just cause versus dismissal. The difference in the two questions is that the issue at stake in the first is disentitlement. As noted above, the issue at stake in the second question is disqualification.

[19] In this case, I find that the Claimant’s employer placed her on an unpaid leave of absence. The employer didn’t do so because she asked for leave or because there was a shortage of work, but because this was a consequence of not doing what the employer asked her to do. So, I don’t find that the Claimant voluntarily took leave from her job or was laid off; rather, I find the Claimant’s employer suspended her from her job.

Was the Claimant suspended from her job because of misconduct?

[20] 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 5}

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

Why was the Claimant suspended from her job?

[22] I find that the Claimant was suspended from her job because she went against her employer’s vaccination policy.

[23] In her application for benefits, the Claimant said she was on a leave of absence. She said the reason for the leave of absence wasn’t clarified. She told the Commission that she checked her schedule and noticed that she had been put on a leave of absence. She said she didn’t get an email from her employer and reached out to them, but did not hear from them.

[24] The Claimant’s employer told the Commission that the Claimant did not say if she was vaccinated against COVID-19 as required by its policy. The employer said this put the Claimant in the stream of employees who were placed on unpaid leave with no shift bid or vacation bid.

[25] I don’t find what the Claimant said in her application for benefits is credible. She testified that knew the employer was going to ask employees for their vaccine status. But she said she exercised her right to keep her information private.

[26] Even though the Claimant thinks her employer violated her rights by forcing her on unpaid leave, I find that the Claimant was suspended from her job because she went against employer’s COVID-19 vaccination policy.

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

[27] The reason for the Claimant’s suspension is misconduct under the law.

[28] 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 suspension 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.

[29] Case law says that, to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 6} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 7} 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 8}

[30] 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 9}

[31] The law doesn’t say I have to consider how the employer behaved.^{Footnote 10} Instead, I have to focus on what the Claimant did or failed to do and whether that amounts to misconduct under the Act.^{Footnote 11}

[32] 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 in this case wrongfully suspended) or whether the employer should have made reasonable arrangements (accommodations) for the Claimant aren’t for me to decide.^{Footnote 12} I can consider only one thing: whether what the Claimant did or failed to do is misconduct under the Act.

[33] The Commission has to prove that the Claimant was suspended from 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 was suspended from her job because of misconduct.^{Footnote 13}

[34] The Claimant says that there was no misconduct because her employer didn’t negotiate the COVID-19 vaccine policy with her union. She also says her employer doesn’t have the right to her private medical information.

[35] The Commission says that there was misconduct because the Claimant knew about her employer’s vaccine policy, deadlines, and consequences of non-compliance. But she chose not comply with it for personal reasons.

[36] I find that the Commission has proven that there was misconduct. I do so because the Claimant knew that she could be suspended from her job if she went against her employer’s COVID-19 vaccine policy.

[37] The Claimant’s employer sent the Commission messages about its COVID-19 vaccination policy. One message from October 7, 2021 states that employees have to be fully vaccinated by October 30, 2021. It asks that employees send their vaccination status no later than October 16, 2021.

[38] The message states that those who don’t provide proof of full vaccination will be placed on a leave of absence without pay as of October 31, 2021. The message included frequently asked questions, a user guide and information sheet about medical exemptions. The employer told the Commission that the deadline for employees to be fully vaccinated was extended to November 14, 2021.

[39] I asked the Claimant if she got the message noted above. The Claimant said she believes the requirement to disclose vaccine status by October 16, 2021 was in the email. But she said she thinks the deadline was extended to October 30, 2021.

[40] The employer sent the Claimant an email on October 22, 2021. It says that submitting her COVID-19 vaccination information is mandatory and has potential implications for her employment status after October 31, 2021. The Claimant replied to the email on November 2, 2021. She said she didn’t feel comfortable disclosing her personal medical information.

[41] Concerning the email exchange, the Claimant said she wasn’t sure that she would be on a leave of absence or that her job would be at risk. She added that the email referred to potential implications, but it never said for sure.

[42] In find that in spite of the Claimant’s testimony, she should have known that if she didn’t disclose her vaccine status, she would likely be suspended. I find that the employer’s October 7, 2021 message was clear; it said employees who don’t disclose their status “will be placed on a leave of absence without pay”.

[43] The frequently asked questions attached to the employer’s October 7, 2021 includes the question, “[w]hat happens if I am not fully vaccinated by October 30”. The response uses the same language as the email. So, I find the Claimant should have known what would happen if she didn’t tell her employer if she was vaccinated.

[44] I understand from her testimony that the Claimant believes that her employer’s vaccine policy violates her rights. She also says the employer should have negotiated with the union to have the policy included in her collective agreement. The Claimant that testified that her employer didn’t follow the proper channels to put its requirement to take the COVID-19 vaccine in her collective agreement. She said her human rights and charter rights were violated.

[45] In Canada, there are laws that protect an individual’s rights, such as the right to privacy or the right to equality (non-discrimination). The Charter of Rights and Freedoms is one of these laws. There is also the Canadian Bill of Rights, the Canadian Human Rights Act, and a number of provincial laws that protect rights and freedoms.

[46] I am not allowed to consider whether an action taken by an employer violates a claimant’s Charter rights. I am also not allowed to make rulings on the other laws referred to above, or any of the provincial laws that protect rights and freedoms. The Claimant must go to a different tribunal or a court to address that.

[47] Similarly, it is not my role to decide whether the Claimant’s employer violated her collective agreement by not re-negotiating it to include the requirement for the COVID-19 vaccine. My role is to decide whether the Claimant’s decision not to say if she took the vaccine is misconduct within the meaning of the Act.

[48] The Claimant submitted a decision from the General Division of the Tribunal that she says is the same as hers. In that decision, the Tribunal Member found the claimant’s employer verbally told him of its vaccination policy two days before he had to be vaccinated against COVID-19 and that the Claimant didn’t know he could be fired if he wasn’t vaccinated.^{Footnote 14}

[49] I don’t find the case noted above is the same as the Claimant’s. She confirmed that she got messages from the employer about its COVID-19 vaccination policy. The employer told the Commission that it extended the deadline for employees to show proof of vaccination to November 14, 2021. So, I find the Claimant had enough time to be vaccinated from the time she learned that she would have to do so.

[50] I have already found that, unlike the case in the above-noted decision, the Claimant should have known that she would be placed on an unpaid leave of absence.

[51] I find that the Claimant’s action, namely not saying if she was vaccinated against COVID-19, was wilful. She made a conscious, deliberate, and intentional choice not to do so. She did so knowing that she would be placed on an unpaid leave absence. I find that this means that she was suspended. For these reasons, I find that the Commission has proven that there was misconduct.

So, was the Claimant suspended from her job because of misconduct?

[52] Based on my findings above, I find that the Claimant was suspended from her job because of misconduct.

[53] This is because the Claimant’s actions led to her suspension. She acted deliberately. She knew that refusing to say if she was vaccinated was likely to cause her to be suspended from her job.

Conclusion

[54] The Commission has proven that the Claimant was suspended from her job because of misconduct. Because of this, the Claimant is disentitled from receiving EI benefits.

[55] This means that the appeal is dismissed.