Employment Insurance (EI)

Decision

[1] The appeal is allowed. The General Division acted unfairly by proceeding without giving the Claimant an opportunity to submit a pending arbitration decision. I have decided to return this matter to the General Division for a new hearing.

Overview

[2] The Claimant, J. P., is appealing a General Division decision to deny him Employment Insurance (EI) benefits. 

[3] The Claimant worked as a wastewater technician for the X. On November 8, 2021, his employer placed him on an unpaid leave of absence after he refused to provide proof that he had had received the COVID-19 vaccination (he was later dismissed from his job altogether). The Canada Employment Insurance Commission (Commission) decided that it didn’t have to pay the Claimant EI benefits because his failure to comply with his employer’s vaccination policy amounted to misconduct.

[4] The General Division agreed with the Commission. 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 lead to disciplinary measures.

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

• It failed to recognize that nothing in federal or provincial law requires anyone to submit to the COVID-19 vaccination;
• It failed to appreciate that, under the Canadian Bill of Rights, individuals have the right to refuse medical treatment;
• It ignored the fact that his employer attempted to impose a new condition of employment without his consent; and
• It failed to recognize that, under his employment contract and collective agreement, he did nothing wrong by refusing the vaccine.

[6] Earlier this year, I granted the Claimant permission to appeal because I thought he had an arguable case that the General Division denied him an opportunity to present his best case. At the Claimant’s request, I heard his appeal by reviewing the existing documentary record.

[7] Now that I have considered submissions from both parties, I have concluded that the General Division’s decision cannot stand.

Issue

[8] 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}

[9] My job was to determine whether the General Division committed an error that fell into one or more of the above grounds of appeal.

Analysis

[10] I am satisfied that the General Division proceeded in a way that wasn’t fair to the Claimant. Because the General Division’s decision falls for this reason alone, I see no need to consider the Claimant’s remaining allegations.

The General Division failed to provide the Claimant with a full and fair hearing

[11] The centrepiece of the Claimant’s application for leave to appeal is a 61-page arbitration decision. On the face of it, the decision supports his position that he did nothing wrong by disobeying his employer’s mandatory vaccination policy.^{Footnote 2} The decision was the culmination of a process that began when the Claimant’s union filed a grievance against the X for requiring its employees to show proof of vaccination or face disciplinary measures.

I could not consider the arbitration decision

[12] As discussed at the case conference with the parties, I can’t consider the substance of this arbitration decision.^{Footnote 3} That’s because it was never submitted to the General Division. The Claimant told me that, although the arbitration decision was issued a week before the General Division’s ruling, he didn’t find out about it until later.

[13] The Claimant is asking me to consider the arbitration decision and find him not guilty of misconduct. However, that is not how the Appeal Division works. For EI claims, the Appeal Division is only permitted to consider errors, and the General Division can’t be faulted for ignoring something that was never put in front of it in the first place.

[14] Until recently, there was a provision in the law that allowed the General Division to rescind or amend one of its decisions on the basis of new facts.^{Footnote 4} Unfortunately for the Claimant, that provision was repealed only a few weeks before he submitted his arbitration decision. So, just as there has never been a way for me to assess the Claimant’s new evidence, there is now no way for the General Division to revisit its decision in light of such new evidence.

The General Division ignored the fact that the Claimant had initiated a grievance

[15] Even so, I am satisfied that the Claimant’s case has merit. That’s because the General Division failed to give him a full opportunity to be heard.

[16] At the Claimant’s request, the General Division conducted its hearing by way of written questions and answers.^{Footnote 5} I can understand why the General Division wanted to accommodate the Claimant’s wishes. However, this was an occasion for it to exercise its discretion and impose a hearing format that was better suited to drawing out information from an unrepresented party.^{Footnote 6}

[17] In his submissions to the General Division, the Claimant disclosed that his union had filed a policy grievance against the X.^{Footnote 7} The General Division therefore must have been aware that the Claimant had taken active steps to defend his right, as he saw it, to refuse the COVID-19 vaccine without jeopardizing his job. Nevertheless, it apparently didn’t occur to the General Division to offer the Claimant an opportunity to delay the proceedings to allow the grievance process to play itself out.

[18] The Claimant’s grievance is what distinguishes his case from many other similar ones. When it comes to finding misconduct, the courts recognize a low bar. Case law says that the only questions that matter are whether an EI claimant breached their employer’s policy and, if so, whether that breach was deliberate and foreseeably likely to result in dismissal.^{Footnote 8}

[19] The General Division found that it didn’t have the authority to decide whether an employer’s policies are fair or reasonable:

I can’t make any decisions about whether the Claimant has other options under other laws. Issues about whether the Claimant was wrongfully dismissed or whether the employer should have made reasonable arrangements (accommodations) for the Claimant aren’t for me to decide.^{Footnote 9}

[20] The General Division went on to find that the Claimant would have to look to “a different tribunal or a court” if he wanted to challenge the legality or constitutionality of his employer’s COVID-19 policy.^{Footnote 10}

[21] However, this is a case where there was evidence on the record that the Claimant was in the process of doing just what the General Division suggested he do—challenge his employer’s policy in another forum, specifically, the arbitration process called for by the collective agreement between CUPE and the X.

[22] In her written questions to the Claimant, the presiding General Division member did not ask him about the grievance.^{Footnote 11} In my view, the member should have been aware that the grievance process might yield an answer to the question of whether, in fact, the Claimant did anything to warrant his dismissal. For that reason, I am satisfied that the General Division proceeded without first giving him an option to ask for an adjournment pending receipt of important information.

Remedy

[23] When the General Division makes an error involving an EI matter, the Appeal Division can fix it by one of two ways: it can (i) send the matter back to the General Division for a new hearing or (ii) give the decision that the General Division should have given.^{Footnote 12}  

[24] In this case, I have no choice but to send this matter back to the General Division for rehearing. That’s because I don’t think the record is complete enough to allow me to make an informed decision on the merits of the Claimant’s case. When I substitute my decision for the General Division’s, I can only consider the record that was available to the General Division at the time of hearing. In this case, owing to a failure of procedural fairness, that record is missing the arbitration decision that the Claimant believed would prove he was not guilty of misconduct.

[25] Unlike the Appeal Division, the General Division’s primary mandate is to weigh evidence and make findings of fact. As such, it is inherently better positioned than I am to consider the arbitration decision and to explore whatever avenues of inquiry that may arise from it.

[26] I am reinforced in my decision by the fact that the Commission, while not conceding that the General Division acted unfairly, was amenable to this matter going back to the General Division.^{Footnote 13} For his part, the Claimant is content to have his appeal disposed in this way.^{Footnote 14}

Conclusion

[27] For the above reasons, I find that the General Division committed breach of procedural fairness. Because the record is not sufficiently complete to allow me to decide this matter on its merits, I am referring it back to the General Division for a fresh hearing.

[28] The appeal is allowed.