Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The General Division did not make any legal errors when it decided against considering (1) the legality of the employer’s vaccination policy and (2) the issue about whether the Appellant, A. G. (Claimant), had to comply with a policy that was not part of his original employment agreement. The Claimant remains disqualified from receiving Employment Insurance benefits.

Overview

[2] The Claimant is appealing the General Division decision. The General Division found that the Claimant lost his employment because of misconduct. In other words, it found that he did something that caused him to lose his job. The Claimant did not comply with his employer’s policy that required him to get vaccinated and to disclose his vaccination status. As a result, the Claimant was disqualified from receiving Employment Insurance benefits.

[3] The Claimant argues that the General Division made both jurisdictional and legal errors. In particular, he argues that the General Division failed to consider whether his employer’s vaccination policy was lawful. He says that the policy violated several laws. So, he argues that, if the General Division had considered and accepted that the policy violated several laws, then it would have concluded that he did not have to comply with an unlawful policy. He argues that it would have concluded that there was no misconduct under those circumstances.

[4] The Claimant also argues that the vaccination policy represented a new condition of his employment. He argues that his employer is not allowed to impose any new policies on him without his consent. So, he argues that there was no misconduct when he did not comply with his employer’s new vaccination policy.

[5] The Claimant asks the Appeal Division to allow his appeal and to find that there was no misconduct in his case.

[6] The Respondent, the Canada Employment Insurance Commission (Commission), argues that the General Division did not make any errors. The Commission says that there was nothing unlawful about the employer’s vaccination policy and says employers may introduce such policies as it is consistent with their general duties to ensure workplace safety and health. The Commission asks the Appeal Division to dismiss the appeal.

Issues

[7] The issues in this appeal are as follows:

1. a) Did the General Division fail to consider whether the employer’s vaccination policy was lawful?
2. b) Did the General Division fail to consider whether the Claimant had to comply with his employer’s vaccination policy as it did not form part of his employment agreement?

Analysis

[8] The Appeal Division may intervene in General Division decisions if there are jurisdictional, procedural, legal, or certain types of factual errors.^{Footnote 1}

General background facts

[9] The general facts are not in dispute. The Claimant worked as a security guard at a facility that produces cannabis. His employer introduced a mandatory vaccination policy. Unlike a health care or long-term care facility, the Claimant says that his employer was not required to implement a vaccination policy.

[10] For various reasons, the Claimant did not comply with his employer’s vaccination policy, which resulted in his dismissal. The Claimant applied for Employment Insurance benefits, but the Commission turned down his application, finding that there had been misconduct. The Claimant appealed the Commission’s decision to the General Division.

[11] The General Division dismissed the Claimant’s appeal. It found that the Claimant lost his job because of misconduct. It found that his actions led to his dismissal. It found that he had acted deliberately and that he knew that refusing to get vaccinated or to disclose his vaccination status would likely cause him to lose his job.

Did the General Division fail to consider whether the employer’s vaccination policy was lawful?

[12] The Claimant argues that the General Division made a jurisdictional error. He argues that the General Division should have considered whether his employer’s vaccination policy was lawful. The Claimant argues that the policy violated several laws or policies, including the Nuremburg Code, Canadian Medical Association policies, his human rights, and his rights under the Canadian Charter of Rights and Freedoms.

[13] The Claimant says that, if the General Division had accepted that his employer’s policy was unlawful, it would have found that he did not have to comply with it, and that there was no misconduct.

[14] The Commission agrees that the General Division did not address whether the employer’s policy was lawful. But the Commission argues that, even if the General Division had considered whether the policy was lawful, it would not have changed the outcome.

[15] The General Division acknowledged the Claimant’s argument that his employer’s policy was illegal, discriminatory, and unfair, and that it violated several laws or legal principles.^{Footnote 2} The General Division did not examine whether the employer’s policy was lawful, and, if it was unlawful, whether the Claimant had to comply with it, and if he did not comply, whether that amounted to misconduct.

[16] The General Division determined that the only issue it had to decide was whether the Claimant’s actions met the definition of misconduct under the Employment Insurance Act.

[17] In granting leave to appeal on this matter, I noted that the Federal Court of Appeal had suggested that, as long as an employer’s directive is lawful, an employee has to comply with that directive.^{Footnote 3} Failure to comply would be misconduct. I reasoned that what must flow from this is that if an employer’s directive or policy is, on the other hand, unlawful, then there was an arguable case that an employee should not have to comply with such a policy and that it was arguable that there was no misconduct.

Cecchetto v Canada (Attorney General) says the legality of a vaccination policy is irrelevant to the misconduct question

[18] The Federal Court has recently provided more clarity on this issue. In a case called Cecchetto v Canada (Attorney General),^{Footnote 4} Mr. Cecchetto argued that the Federal Court should overturn the decision of the Appeal Division in his case. He said the Appeal Division had failed to deal with his questions about the legality of requiring employees to undergo medical procedures, including vaccination and testing.

[19] Mr. Cecchetto argued that because the efficacy and safety of these procedures were unproven, he should not have to get vaccinated. He says there were legitimate reasons to refuse vaccination. And, for that reason, he says misconduct should not have arisen if he chose not to get vaccinated.

[20] The Court wrote:

[46] As noted earlier, it is likely that the Applicant [Ceccheto] will find this result frustrating, because my reasons do not deal with the fundamental legal, ethical, and factual questions he is raising. That is because many of these questions are simply beyond the scope of this case. It is not unreasonable for a decision-maker to fail to address legal arguments that fall outside the scope of its legal mandate.

[47] The SST-GD, and the Appeal Division, have an important, but narrow and specific role to play in the legal system. In this case, the role involved determining why the Applicant was dismissed from his employment, and whether that reason constituted “misconduct.” …

[48] Despite the Claimant’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. That sort of finding was not within the mandate or jurisdiction of the Appeal Division, nor the SST-GD. [Citation omitted]^{Footnote 5}

(My emphasis)

[21] The Appeal Division did not make any findings in the Cecchetto case about the legality of the vaccination policy. The Court said it was simply beyond the Appeal Division’s scope. The Court determined that the Appeal Division has a very limited role in what it can do. It is restricted to determining why a claimant is dismissed from their employment and whether that reason constitutes misconduct.

[22] It is clear from Cecchetto that the Claimant’s arguments about the legality of his employer’s vaccination policy are irrelevant to the misconduct question. For that reason, the General Division did not make an error when it decided that it could focus only on what the Claimant did or failed to do and whether that amounted to misconduct under the Employment Insurance Act.

Did the General Division fail to consider whether the Claimant had to comply with a policy that did not form part of his employment agreement?

[23] The Claimant argues that the General Division failed to consider whether he had to comply with a policy that did not form part of his original employment agreement. He says that he did not have to comply with his employer’s vaccination policy because his employment agreement did not require vaccination.

[24] The General Division noted the Claimant’s argument that vaccination was not a condition of his employment and that he therefore did not have to comply with the policy.^{Footnote 6} But the General Division did not directly address this argument and it did not make any findings about any terms and conditions of his employment.

[25] The Claimant says that if the General Division had considered this issue, it would have found that the vaccination policy did not form part of his employment contract. As it was not part of his original employment contract, and as he says his employer was not allowed to impose new conditions of employment without his consent, he did not have to comply with the new policy. If, as he says, he did not have to comply with his employer’s vaccination policy, the Claimant denies that there could have been any misconduct when he did not get vaccinated.

The Claimant relies on AL v Canada Employment Insurance Commission

[26] The Claimant relies on a case called AL v Canada Employment Insurance Commission.^{Footnote 7} The Claimant argues that the same set of circumstances as in AL exist in his case. He argues that the General Division should have applied the principles set out in AL. (The General Division issued AL a month later, so while the General Division could not have followed it, the Claimant is essentially saying the same principles apply.)

[27] In AL, the General Division examined whether AL lost her job because of misconduct. AL had not complied with her employer’s vaccination policy. The General Division found there was no misconduct in AL’s case because the employer had introduced a vaccination policy without consulting employees and getting their consent.

[28] The General Division in that case determined that neither party could unilaterally impose new conditions to the employment agreement. The General Division found that only legislation allows an employer to act unilaterally and require compliance by an employee.^{Footnote 8}

The Claimant’s employment agreement did not require vaccination

[29] The Claimant me did not produce a copy of his original employment contract at the General Division, though he referred to it in his Notice of Appeal.^{Footnote 9} Even so, I am prepared to accept that the Claimant’s original employment contract did not require either vaccination against COVID-19 or proof of vaccination. There is no reason to disbelieve the Claimant.

An employer may unilaterally impose new terms outside the employment agreement

[30] The fact that the employment agreement might not have contained any provisions for vaccination did not preclude the employer from unilaterally imposing new conditions or requirements on the Claimant.

[31] I recognize that in AL, the General Division determined that neither party could unilaterally impose new conditions, but this finding is inconsistent with well-established law.

[32] In a unionized setting, an employer can unilaterally impose any rule or policy, even if the union disagrees, as long as it is consistent with the collective agreement and is reasonable.^{Footnote 10} This is what is called the “KVP test.” The courts have consistently endorsed this test.

[33] The Claimant’s employment was not in a unionized setting. But the courts have routinely used this approach outside the union setting.^{Footnote 11} In other words, as long as the employer’s policy or rule is consistent with the employment agreement and is overall reasonable, the employer may unilaterally impose new policies or rules.

The General Division has a limited role in the issues it can examine

[34] If the Federal Court has determined that it lies beyond the scope of the General Division to assess the merits, legitimacy, or legality of an employer’s vaccination policy, then the same should also apply when the issue of the reasonableness of a vaccination policy arises.

[35] This would mean that the General Division has no role in deciding whether a vaccination policy is reasonable, whether it is for the purposes of assessing misconduct, or for some other purposes, such as in examining whether an employer can unilaterally impose a rule or policy in the workplace.

[36] After all, it would seem unreasonable if, on the one hand, the General Division has no mandate or jurisdiction to decide on the merits, legitimacy, or legality of a vaccination policy, but then, on the other hand, it was to have a broad mandate to decide on the reasonableness of that policy.

[37] The Federal Court has made it clear that the General Division and Appeal Division have a narrow and specific role. Their role is limited to determining why a claimant might have been dismissed from their employment and whether that reason constitutes misconduct.^{Footnote 12}

In the Cecchetto case, the Federal Court accepted that the employer could unilaterally impose a vaccination policy

[38] In the Cecchetto case, the applicant relied on AL, much like the Claimant is in the appeal before me. Mr. Cecchetto argued that it is not misconduct to refuse to abide by a vaccine policy that an employer unilaterally imposed.

[39] It is clear from the evidence in the Cecchetto case that the applicant’s employment agreement did not require vaccination. The applicant began his employment in 2017—well before the pandemic began. His employer later adopted the provincial health directive that required vaccination or regular testing. The employer adopted the policy unilaterally, without Mr. Cecchetto’s consent.

[40] The Court noted this evidence. It was aware when Mr. Cecchetto started working and was aware that his employer adopted the provincial health directive. Mr. Cecchetto opposed the policy.

[41] The Court accepted that, even if vaccination did not form part of Mr. Cecchetto’s original employment agreement, that his employer could subsequently introduce a policy that required vaccination.

[42] The Court found that the General Division had reasonably determined that Mr. Cecchetto had committed misconduct based on his non-compliance with that a policy that did not form part of his original employment agreement.

[43] The Court said that there could be some factual circumstances when AL is relevant. However, the Court’s comments on this point were made in obiter and hence, they are not binding. Besides, the Court was quick to factually distinguish the case. It noted that in AL, the employer’s policy required mandatory vaccination and did not provide for any exemptions or for testing as an alternative. Here, the Claimant’s employer provided some accommodations, provided the employer was satisfied the request was valid.

[44] While the Claimant’s employment agreement did not require vaccination, it is clear from the Cecchetto case that an employer may introduce a new policy or rule, even if an employee disagrees with it and does not consent to it.

Conclusion

[45] The appeal is dismissed.

[46] The General Division did not fail to consider whether the employer’s vaccination policy was lawful. The General Division simply did not have any authority to decide this issue.

[47] The General Division noted the Claimant’s argument that he did not have to comply with a policy that did not form part of his original employment agreement. It did not directly address this argument, but it would not have changed the outcome.