Employment Insurance (EI)

Decision

[1] The appeal is dismissed. I disagree with the Appellant.

[2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant was suspended from her job because of misconduct (in other words, because she did something that caused her to be suspended from her job).^{Footnote 1} This means that the Appellant is disentitled from receiving Employment Insurance (EI) benefits.^{Footnote 2}

Overview

[3] The Appellant was suspended from her job. The Appellant’s employer said that she was suspended because she didn’t follow their mandatory COVID-19 vaccination policy.

[4] Even though the Appellant doesn’t dispute that this happened, she says that her employer unfairly suspended her because she didn’t feel comfortable getting the COVID-19 vaccine and her employer changed her conditions of employment when they introduced their policy.

[5] The Commission accepted the employer’s reason for the suspension. It decided that the Appellant was suspended from her job because of misconduct. Because of this, the Commission decided that the Appellant is disentitled from receiving EI benefits.

Matter I have to consider first

The Charter of Rights and Freedoms

[6] In her Notice of Appeal, the Appellant referred to the Charter of Rights and Freedoms.^{Footnote 3}

[7] I note that the Tribunal can’t consider any arguments related to the Charter of Rights and Freedoms unless they specifically focus on how EI law (the Employment Insurance Act and Employment Insurance Regulations) violates the Charter. At the hearing, I told the Appellant this and asked if she wanted to make a Charter argument that the Tribunal could consider. She said she didn’t.

[8] I note that the Appellant went on to refer to the Charter (by saying her employer’s mandatory COVID-19 vaccination policy violates her Charter rights) anyway, but she did this knowing that I can’t consider this argument here for the reason I’ve just mentioned.

Issue

[9] Was the Appellant suspended from her job because of misconduct?

Analysis

[10] The law says that you can’t get EI benefits if you lose your job because of misconduct. This applies when the employer has let you go or suspended you.^{Footnote 4}

[11] To answer the question of whether the Appellant was suspended from her job because of misconduct, I have to decide two things. First, I have to determine why the Appellant was suspended from her job. Then, I have to determine whether the law considers that reason to be misconduct.

Why was the Appellant suspended from her job?

[12] I find that the Appellant was suspended from her job because she didn’t follow her employer’s mandatory COVID-19 vaccination policy.

[13] The Appellant and the Commission agree on why the Appellant was suspended from her job. The Appellant says that her employer suspended her because she didn’t follow their mandatory COVID-19 vaccination policy.^{Footnote 5} Even though her employer never spoke to the Commission, I find there’s no evidence to conclude she was suspended for any other reason.

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

[14] The reason for the Appellant’s suspension is misconduct under the law.

[15] The Employment Insurance Act (Act) doesn’t say what misconduct means. But case law (decisions from courts and tribunals) shows us how to determine whether the Appellant’s suspension is misconduct under the Act. It sets out the legal test for misconduct—the questions and criteria to consider when examining the issue of misconduct.

[16] Case law says that, to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 6} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 7} The Appellant 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 8}

[17] There is misconduct if the Appellant 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 because of that.^{Footnote 9}

[18] The Commission has to prove that the Appellant 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 Appellant was suspended from her job because of misconduct.^{Footnote 10}

[19] The law doesn’t say I have to consider how the employer behaved.^{Footnote 11} Instead, I have to focus on what the Appellant did or failed to do and whether that amounts to misconduct under the Act.^{Footnote 12}

[20] I have to focus on the Act only. I can’t make any decisions about whether the Appellant has other options under other laws. Issues about whether the Appellant was wrongfully suspended or whether the employer should have made reasonable arrangements (accommodations) for the Appellant aren’t for me to decide.^{Footnote 13} I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act.

[21] The Commission says that there was misconduct because the Appellant knew about her employer’s mandatory COVID-19 vaccination policy and knew that she could be suspended if she didn’t follow the policy, but she chose not to follow it anyway.^{Footnote 14}

[22] The Appellant says that there was no misconduct because it was unfair of her employer to suspend her for not getting vaccinated.

[23] The Appellant told the Commission and testified that:

• Her employer introduced a mandatory COVID-19 vaccination policy on November 1, 2021.^{Footnote 15}
• Supervisors began requesting proof of vaccination status on November 8, 2021.^{Footnote 16}
• All employees were required to be fully vaccinated by November 22, 2021.^{Footnote 17}
• She knew that she could be suspended if she didn’t follow the policy.^{Footnote 18}
• She had conversations with her supervisor after the policy was introduced. They asked if she would be getting vaccinated and reiterated the deadline and what would happen if she didn’t follow the policy. 
• She didn’t disclose her vaccination status to her employer.^{Footnote 19}
• She made a personal choice not to disclose her vaccination status or get vaccinated. She is concerned that not enough is known about the health effects of the COVID-19 vaccine and it is her decision what she puts into her body.^{Footnote 20}
• Her employer’s policy allowed exemptions, but she didn’t request one because she didn’t qualify.^{Footnote 21}
• Her employer changed her conditions of employment when they introduced the policy.^{Footnote 22}
• Her employer didn’t offer her any other accommodations besides following the policy or getting an exemption.

[24] The Appellant’s employer’s mandatory COVID-19 vaccination policy says the following:

• All employees must provide proof of vaccination, effective November 8, 2021.^{Footnote 23}
• Employees who don’t provide proof of vaccination or refuse to disclose their vaccination status by November 22, 2021 will be considered unvaccinated.^{Footnote 24}
• After November 22, 2021, employees who are unvaccinated and don’t have an approved medical or religious exemption will be placed on leave without pay for 3 months.^{Footnote 25}
• After 3 months of being placed on leave without pay, employees who haven’t become at least partially vaccinated may be terminated.^{Footnote 26}

[25] I sympathize with the Appellant, but find that the Commission has proven there was misconduct for the following reasons.

[26] I find that the Appellant committed the actions that led to her suspension, as she knew her employer had a mandatory COVID-19 vaccination policy and what she had to do to follow it.

[27] I further find that the Appellant’s actions were intentional as she made a conscious decision not to follow her employer’s policy.

[28] There is clear evidence that the Appellant knew about her employer’s policy. She said that she knew about it, as mentioned above.

[29] There is also clear evidence that the Appellant chose not to follow her employer’s policy. She said that she didn’t disclose her vaccination status or get vaccinated by the deadline her employer gave her or request an exemption from the policy, as mentioned above.

[30] I acknowledge that the Appellant has concerns about getting the COVID-19 vaccine and feels that her employer should have given her a special accommodation instead of asking her to follow their policy (by getting vaccinated or an approved exemption).

[31] I also acknowledge that the Appellant believes that her employer changed her conditions of employment when they introduced their policy.

[32] Unfortunately, I find that these arguments aren’t relevant here. As mentioned above, I must focus my analysis of misconduct on the employee’s conduct, not the employer’s. This means I need to focus on the Appellant’s actions leading to her suspension and whether she knew her actions could lead to her being suspended. If the Appellant wants to pursue these arguments, she needs to do that through another forum.

[33] While I acknowledge the Appellant’s concerns about her employer’s mandatory COVID-19 vaccination policy, I find that the evidence clearly shows that she made a conscious decision not to follow it. She didn’t disclose her vaccination status or get vaccinated as the policy required her to do, which shows that her actions were intentional.

[34] I also find that the Appellant knew or should have known that not following her employer’s mandatory COVID-19 vaccination policy could lead to her being suspended from her job.

[35] There is clear evidence that the Appellant knew she could be suspended if she didn’t follow the policy. She said that she knew this and had conversations with her supervisor about it, as mentioned above.

[36] I therefore find that the Appellant’s conduct is misconduct under the law since she committed the conduct that led to her suspension (she didn’t follow her employer’s mandatory COVID-19 vaccination policy), her actions were intentional, and she knew or ought to have known that her actions would lead to her being suspended.

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

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

[38] This is because the Appellant’s actions led to her suspension. She acted deliberately. She knew that refusing to follow her employer’s mandatory COVID-19 directive was likely to cause her to be suspended from her job.

[39] The Appellant says that she is entitled to EI because she has been contributing to it for many years.^{Footnote 27}

[40] I understand the Appellant’s argument and sympathize with her situation. However, Employment Insurance isn’t an automatic benefit. Like any other insurance plan, you have to meet certain requirements to qualify to get benefits. In this case, the Appellant doesn’t meet those requirements as she was suspended from her job because of misconduct.

Conclusion

[41] The Commission has proven that the Appellant was suspended from her job because of misconduct. Because of this, the Appellant is disentitled from receiving EI benefits.

[42] This means that the appeal is dismissed.