Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[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 the Claimant is disentitled from receiving Employment Insurance (EI) benefits from October 13, 2021.^{Footnote 1}

Overview

[3] The Claimant worked as an Aqua and Fitness Instructor and was placed on an unpaid leave of absence on October 13, 2021. The Claimant’s employer (“X”) said the Claimant was placed on an unpaid leave of absence because she didn’t comply with their vaccination policy.

[4] The Commission accepted the employer’s reason for placing the Claimant on an unpaid leave of absence. It decided that the Claimant was suspended form her job because of misconduct. Because of this, the Commission decided the Claimant was disentitled from receiving EI benefits from October 13, 2021.

[5] The Commission says the Claimant knew or ought to have known that not providing her vaccination status (or refusing to use a Rapid Test prior to starting work) would result in a suspension.

[6] The Claimant says that she was aware there would be consequences for failing to comply with the employer’s vaccination policy. However, the Claimant says she didn’t know what those consequences would be.

Matters I have to consider first

The Claimant’s representative

[7] The Claimant’s representative (the Claimant’s spouse) attended the hearing. The Claimant’s representative wished to provide oral testimony as a Witness. Under the circumstances, I allowed the Claimant’s representative to provide sworn testimony as a Witness.

Post-hearing documents

[8] The Claimant re-submitted additional documents (video) close to the hearing date. I accepted the video document as evidence. The video document was listed as GD9(A) and GD9(B) in the Appeal Record. I wish to emphasize the Claimant had already submitted the same video document on November 28, 2022.

[9] The Commission submitted additional submissions which arrived post-hearing. These additional submissions were automatically shared with the Claimant. I accepted the post-hearing submissions and they’ve been listed as GD10 in the Appeal Record.

Issue

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

Analysis

[11] 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?

[12] I find the Claimant was suspended from her job because she failed to comply with the employer’s vaccination policy.

[13] The Commission says the reason the employer gave is the reason for the suspension. The employer told the Commission that the Claimant was placed on an unpaid leave of absence because she didn’t comply with their vaccination policy.

[14] The Claimant says she didn’t initiate the unpaid leave of absence and was suspended by the employer.

[15] I find the Claimant was suspended from her job because she failed to comply with the employer’s vaccination policy.

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

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

[17] 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}

[18] 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 suspended or let go because of that.^{Footnote 5}

[19] 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 6}

[20] The Commission says the Claimant knew or ought to have known that not providing her vaccination status (or refusing to use a Rapid Test prior to starting work) would result in a suspension

[21] The Claimant says there was no misconduct because the employer never indicated what the consequences would be for not complying with their vaccination policy.

[22] I find the Commission has proven there was misconduct, because they showed the Claimant was aware there would be consequences for not complying with the employer’s vaccination policy (GD3-17). Furthermore, the Commission provided a copy of the employer’s vaccination policy which stated there would be disciplinary measures for failing to comply with their policy (GD3-23). The Commission also provided the employer’s warning letter to the Claimant (dated October 12, 20210 which stated there would be “employment consequences” for not complying with their vaccination policy (GD3-30). I realize the Claimant testified the employer never indicated what the consequences would be for failing to comply with their vaccination policy. However, the Claimant was aware of the employer’s vaccination policy and ought to have known that disciplinary measures and employment consequences meant there was a real possibility of being suspended from her job.

Additional testimony from the Claimant and Witness

[23] I recognize the Claimant further argued that the employer changed her hiring agreement when they introduced their vaccination policy. However, the matter of determining whether the employer’s vaccination policy was fair or reasonable wasn’t within my jurisdiction. In short, other avenues existed for the Claimant to make these arguments.^{Footnote 7}

[24] I further realize the Witness testified that the employer offered a changed contract to the Claimant and the Claimant refused the new terms. The Witness also argued the Claimant’s Record of Employment should have stated “laid off.” However, as mentioned the matter of determining whether the employer’s vaccination policy was fair or reasonable wasn’t within my jurisdiction. The only issue before me was whether the Claimant was suspended from her job because of misconduct. On this matter I must apply the law. In other words, I cannot ignore the law even in the most sympathetic cases.^{Footnote 8}

[25] Finally, I recognize the employer’s vaccination policy was rescinded on March 28, 2022. Nevertheless, the only issue before me was whether the Claimant was suspended from her job on October 12, 2021, because of misconduct.

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

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

Conclusion

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

[28] This means the appeal is dismissed.