Employment Insurance (EI)

[1] The Claimant (who is the Appellant in this appeal) worked as an Assistant Foreperson for the X (X). He was placed on an unpaid leave of absence and later dismissed from his job because he failed to comply with the employer’s mandatory Covid-19 vaccination policy (the policy).

[2] He applied for regular employment insurance (EI) benefits, but the Commission (who is the Respondent in this appeal) said he was suspended from his job – and ultimately lost his job – due to his own misconduct. This meant he could not be paid any EI benefits.

[3] The Claimant asked the Commission to reconsider its decision. He admitted he was put on an unpaid leave of absence and later terminated from his job for non-compliance with the policy. He said he made a personal choice not to be vaccinated for medical and religious reasons, but the employer denied his request for an exemption to the mandatory vaccination requirement. He believes the employer could have accommodated his request for an exemption, and that he should receive EI benefits because he has paid into the EI program for years.   

[4] The Commission maintained that he could not be paid EI benefits. The Claimant appealed that decision to the Social Security Tribunal (Tribunal).

Issue

[5] I must decide whether the appeal should be summarily dismissed.

The law

[6] The law says I must dismiss an appeal summarily (which means without a hearing) if the appeal has no reasonable chance of success^{Footnote 1}. This means I must consider whether it is plain and obvious on the record that the appeal is bound to fail^{Footnote 2}.

[7] The Tribunal’s own regulations say that before summarily dismissing an appeal, I must give the Claimant notice in writing and allow a reasonable period of time to make submissions^{Footnote 3}.

[8] On August 19, 2022, the Claimant was advised of my intention to summarily dismiss his appeal (GD07). He was given until September 22, 2022 to make detailed written submissions explaining why his appeal had a reasonable chance of success.

[9] The Claimant responded by filing the additional documents at GD10^{Footnote 4}.   

[10] I am summarily dismissing his appeal because it has no reasonable chance of success. These are the reasons for my decision.

Analysis

[11] The law says a claimant cannot be paid EI benefits if they are suspended from their employment due to their own misconduct^{Footnote 5} or if they lose their employment because of their own misconduct^{Footnote 6}.

[12] To be misconduct under the law, the conduct has to be wilful. This means the conduct was conscious, deliberate, or intentional^{Footnote 7}. Misconduct also includes conduct that is so reckless (or careless or negligent) that it is almost wilful^{Footnote 8} (or shows a wilful disregard for the effects of their actions on the performance of their job).

[13] The Claimant doesn’t need to have wrongful intent (in other words, he didn’t have to mean to do something wrong) for his behaviour to be considered misconduct under the law^{Footnote 9}.

[14] There is misconduct if the Claimant knew or should have known his conduct could get in the way of carrying out his duties towards the employer and there was a real possibility of being dismissed because of it^{Footnote 10}.

[15] The Commission has to prove the Claimant lost his job due to misconduct^{Footnote 11}. It relies on evidence it obtains from the employer and the Claimant to do so.

[16] The undisputed evidence in the appeal file shows that:

1. a) the employer implemented a mandatory Covid-19 vaccination policy in response to the Covid-19 pandemic^{Footnote 12}. The policy was intended to protect health and safety in the workplace, and it applied to all X employees^{Footnote 13}.
2. b) the Claimant was informed of the policy and given time to comply with it^{Footnote 14}.
3. c) the Claimant refused to comply with the policy when he failed to provide proof of vaccination the deadlines set out in the policy^{Footnote 15}.
4. d) the Claimant made a conscious, deliberate and intentional choice not to be vaccinated^{Footnote 16}. This made his refusal to comply with the policy wilful.
5. e) he knew his refusal could cause him to be placed on an unpaid leave of absence and eventually lose his job^{Footnote 17}.
6. f) his refusal to comply with the policy was the direct cause of his unpaid leave of absence^{Footnote 18} and subsequent dismissal^{Footnote 19}.

[17] It is well established that a deliberate violation of an employer’s policy is considered misconduct within the meaning of the EI Act^{Footnote 20}. The undisputed evidence in the appeal file similarly supports a conclusion that the Claimant’s wilful refusal to comply with the policy (by providing proof of vaccination by the given deadlines) was misconduct under the EI Act.

[18] The Claimant argues that the employer did not take his mental state into consideration with “their vaccination mandate” and that “they discriminated in what I was going through” (GD2-6). He also says that he was a dedicated, hard-working employee for almost 21 years, and that this should also have been taken into consideration under the policy.   

[19] But the employer’s conduct is not the issue on this appeal. It’s not the Tribunal’s role to decide if the employer acted fairly or if the penalty for non-compliance with the policy was too severe^{Footnote 21}.  Nor is it open to the Tribunal to decide if the policy violated the Claimant’s rights^{Footnote 22}.  The Claimant is free to make these arguments before the appropriate adjudicative bodies and seek relief there.

[20] It is also not enough to pay into the EI program. If a claimant has lost their employment due to their own misconduct, they will be disqualified from EI benefits regardless of how many years they have contributed to the program.

[21] The Claimant submitted a doctor’s note (at GD10-2) describing the medical issues he is facing and asking that he be provided with EI benefits or other financial assistance in light of his circumstances. I am sympathetic to the serious health issues the Claimant is dealing with, and I acknowledge the dire financial circumstances he is experiencing.   

[22] But I can only consider whether the Claimant’s actions that led to his suspension and termination were misconduct under the EI Act.

[23] There is no evidence the Claimant could present at a hearing that would change the facts listed in paragraph 16 above. And if I accept these facts as true, there is no argument the Claimant could make that would allow me to conclude anything other than that he was suspended – and later dismissed – from his employment due to his own misconduct, and cannot be paid EI benefits as a result.

[24] This means his appeal has no reasonable chance of success.

[25] Since it is plain and obvious to me on the record that the Claimant’s appeal is bound to fail, I must summarily dismiss his appeal.

Conclusion

[26] The appeal has no reasonable chance of success and is, therefore, summarily dismissed.