Employment Insurance (EI)

Decision

[1] I am refusing the Claimant permission to appeal because he does not have an arguable case. This appeal will not be going forward.

Overview

[2] The Claimant, J. C., was employed as a track maintenance worker for the X. On October 28, 2021, the X placed the Claimant on an unpaid leave of absence after he refused to submit to COVID-19 testing or vaccination.^{Footnote 1} The Canada Employment Insurance Commission (Commission) decided that it didn’t have to pay the Claimant EI benefits because his failure to comply with his employer’s vaccination policy amounted to misconduct.

[3] This Tribunal’s General Division dismissed the Claimant’s appeal. It found that the Claimant had deliberately broken his employer’s vaccination policy. It found that the Claimant knew or should have known that disregarding the policy would likely result in suspension or dismissal.

[4] The Claimant is now seeking permission to appeal the General Division’s decision. He argues that the General Division ignored evidence that he had a legitimate reason to be exempted from his employer’s mandatory vaccination policy.

Issue

[5]   There are four grounds of appeal to the Appeal Division. A claimant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to use them;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 2}

[6] Before the Claimant can proceed, I have to decide whether his appeal has a reasonable chance of success.^{Footnote 3} Having a reasonable chance of success is the same thing as having an arguable case.^{Footnote 4} If the Claimant doesn’t have an arguable case, this matter ends now.

[7] At this first stage, I have to decide whether there an arguable case that the General Division ignored the Claimant’s religious exemption.

Analysis

[8] I have reviewed the General Division’s decision, as well as the law and the evidence it used to reach that decision. I have concluded that the Claimant does not have an arguable case.

There is no case that the General Division ignored or misunderstood the evidence

[9] The Claimant told the General Division that getting tested or vaccinated were never conditions of his employment. He insisted that nothing in the law required his employer to implement a mandatory vaccination policy.

[10] Given the law surrounding misconduct, these arguments could not succeed. When the General Division reviewed the available evidence, it came to the following findings:

• The Claimant’s employer was free to establish and enforce vaccination and testing policies as it saw fit;
• The Claimant’s employer adopted and communicated a clear policy requiring employees to provide proof that they had been vaccinated or, failing that, were willing to undergo regular testing;
• The Claimant was aware that failure to comply with the policy by a certain date would cause loss of employment;
• The Claimant intentionally refused to get vaccinated or submit to testing within the reasonable timelines demanded by his employer; and
• The Claimant failed to satisfy his employer that he fell under one of the exceptions permitted under the policy.

[11] These findings appear to accurately reflect the Claimant’s testimony, as well as the documents on file. The General Division concluded that the Claimant was guilty of misconduct because his actions were deliberate, and they foreseeably led to his suspension and dismissal. The Claimant may have believed that his refusal to follow the policy was not doing his employer any harm, but that was not his call to make.

There is no case that the General Division misinterpreted the law

Misconduct is any action that is intentional and likely to result in loss of employment

[12] The Claimant has always argued that he did nothing wrong by refusing to submit to testing or get vaccinated. He alleges that the General Division failed to address evidence that he qualified for an exemption under the policy.

[13] I don’t see a case for this argument.

[14] From what I can see, the General Division did address the Claimant’s evidence that he qualified for an exemption. However, it decided that whether the Claimant qualified for an exemption was strictly a matter between him and his employer.

[15] The General Division defined misconduct as follows:

[T]o be misconduct, the conduct has to be willful. This means that the conduct was conscious, deliberate, or intentional. Misconduct also includes conduct that is so reckless that it is almost willful. The Claimant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for hid behaviour to be misconduct under the law.

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 disciplined because of that.^{Footnote 5}

[16] These paragraphs show that the General Division accurately summarized the law around misconduct. The General Division went on to correctly find that, for the purpose of determining EI entitlement, it didn’t have the authority to decide whether an employer’s policies are reasonable, justifiable, or even legal.

Employment contracts don’t have to explicitly define misconduct

[17] The Claimant argues that there was nothing in his employment contract that required him to get the COVID-19 vaccination. However, case law says that is not the issue. What matters is whether the employer has a policy and whether the employee deliberately disregarded it. In its decision, the General Division put it this way:

I have to focus on the EI Act only. I can’t any make decisions about whether the Claimant has other options under other laws or his collective bargaining agreement. Issues about whether the employer should have made reasonable arrangements (accommodations) for the Claimant aren’t for me to decide.^{Footnote 6}

[18] The Claimant maintains that he has a deeply held religious objection to vaccination. He accuses the General Division of ignoring that objection, along with evidence that he qualified for an exemption under his employer’s vaccination policy.

[19] However, the General Division didn’t ignore the Claimant’s attempt to secure a religious exemption. In its decision, the General Division wrote:

[The Claimant] did ask for an exemption based on his religious beliefs. His pastor wrote a letter supporting his request. He sent his exemption request to Human Resources. He had a telephone interview with Human Resources, who he said even though they are not theologians questioned him about his beliefs. His foreman and union representative were also on the phone during the interview. The Claimant testified that he received a letter from his employer on October 29, 2021, telling him his request for exemption did not meet the legal exemption requirements.^{Footnote 7}

[20] The Claimant may find it unfair, but the General Division was barred from considering what his employer did or didn’t do. Instead, the General Division was required to focus on the Claimant’s behaviour and whether that behaviour amounted to misconduct as defined by the Employment Insurance Act (EI Act) and related case law.

[21] In a case called Lemire, the Federal Court of Appeal said:

[It] is not a question of deciding whether or not the dismissal is justified under the meaning of labour law but, rather, of determining, according to an objective assessment of the evidence, whether the misconduct was such that its author could normally foresee that it would be likely to result in his or her dismissal.^{Footnote 8}

[22] The Court went on to find that an employer was justified in calling it misconduct when one of its food delivery employees set up a side business selling cigarettes to customers. The Court found that this was so even if the employer didn’t have an explicit policy against such conduct.

A new case validates the General Division’s interpretation of the law

[23] A recent decision has reaffirmed the General Division’s approach to misconduct in the specific context of COVID-19 vaccination mandates. As in this case, Cecchetto involved a claimant’s refusal to follow his employer’s COVID-19 vaccination policy.^{Footnote 9} The Federal Court confirmed the Appeal Division’s decision that this Tribunal is not permitted to address such questions by law:

Despite the Applicant’s arguments, there is no basis to overturn the Appeal Division’s decision because of its failure to assess or rule on the merits, legitimacy, or legality of Directive 6 [the Ontario government’s COVID-19 vaccine policy]. That sort of finding was not within the mandate or jurisdiction of the Appeal Division, nor the SST-GD.^{Footnote 10}

[24] The Federal Court agreed that, by making a deliberate choice not to follow his employer’s vaccination policy, Mr. Cecchetto had lost his job because of misconduct under the EI Act. The Court said that there were other ways under the legal system in which the claimant could have advanced his wrongful dismissal or human rights claims.

[25] Here, as in Cecchetto, the only questions that matter are whether the Claimant breached his employer’s vaccination policy and, if so, whether that breach was deliberate and foreseeably likely to result in his suspension or dismissal. In this case, the General Division had good reason to answer “yes” to both questions.

Conclusion

[26] For the above reasons, I am not satisfied that this appeal has a reasonable chance of success. Permission to appeal is therefore refused. That means the appeal will not proceed.