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, A. B., works as a X for X. On November 26, 2021, the Claimant’s employer placed him on an unpaid leave of absence after he refused to provide proof that he had received a COVID-19 vaccine. The Canada Employment Insurance Commission (Commission) decided that it didn’t have to pay the Claimant EI benefits because his failure to comply with X’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 loss of employment.

[4] The Claimant is now asking for permission to appeal the General Division’s decision. He argues that the General Division made the following errors:

• It misinterpreted the meaning of “misconduct” in the Employment Insurance Act (EI Act);
• It ignored the fact that his record of employment said nothing about being let go for misconduct;
• It ignored the fact that neither his employment contract nor collective agreement said anything about a vaccine requirement; and
• It ignored the fact that, by forcing him to do disclose his vaccine status under threat of dismissal, his employer infringed his right to privacy.

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 1}

[6] Before the Claimant can proceed, I have to decide whether his appeal has a reasonable chance of success.^{Footnote 2} Having a reasonable chance of success is the same thing as having an arguable case.^{Footnote 3} If the Claimant doesn’t have an arguable case, this matter ends now.

[7] At this preliminary stage, I have to answer this question: Is there an arguable case that the General Division erred in finding the Claimant lost his job because of misconduct?

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 maintains that he did nothing wrong by refusing to tell X whether he had been vaccinated. He accuses the General Division of ignoring his employer’s attempt to impose a new condition of employment without his consent.

[10] Given the law surrounding misconduct, I don’t see how the General Division made a mistake in rejecting these arguments.

[11] 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 fully vaccinated;
• The Claimant was aware that failure to comply with the policy by a certain date would cause loss of employment; and
• The Claimant intentionally refused to disclose whether he had been vaccinated within the reasonable timelines demanded by his employer.

[12] These findings appear to accurately reflect the documents on file, as well as the Claimant’s testimony. The Claimant insists that he was not suspended for misconduct, but his employer made it clear that he was laid off because he failed to comply with its vaccination policy. The General Division concluded that the Claimant was guilty of misconduct because his actions were deliberate, and they foreseeably led to his suspension. The Claimant may have believed that his refusal to follow the policy was not doing his employer any harm but, from an EI standpoint, that was not his call to make.

There is no case that the General Division misinterpreted the law

[13] When it comes to assessing misconduct, this Tribunal cannot consider the merits of a dispute between an employee and their employer. This interpretation of the EI Act may strike the Claimant as unfair, but it is one that the courts have repeatedly adopted and that the General Division was bound to follow.

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

[14] At the General Division, the Claimant argued that nothing in the law required his employer to implement a mandatory vaccination policy. He maintained that getting tested or vaccinated were never conditions of his employment.

[15] I don’t see how the General Division made a mistake in rejecting these arguments.

[16] It is important to keep in mind that “misconduct” has a specific meaning for EI purposes that doesn’t necessarily correspond to the word’s everyday usage. The General Division defined misconduct as follows:

To 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 his 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 suspended or let go because of that.^{Footnote 4}

[17] These paragraphs show that the General Division accurately summarized the law around misconduct. The General Division went on to correctly find that, when determining EI entitlement, it doesn’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

[18] The Claimant argues that nothing in his employment contract and collective agreement 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.

[19] In a case called Lemire, the Federal Court of Appeal had this to say:

However, this 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 5}

[20] The court in Lemire went on to find that it was misconduct for a food delivery employee to 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

[21] A recent Federal Court decision has reaffirmed this 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 6} The Federal Court confirmed the Appeal Division’s decision that this Tribunal is not permitted to address these 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 7}

[22] The Federal Court agreed that, by making a deliberate choice not to follow the 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.

[23] 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

[24] 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.