Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Claimant.

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

Overview

[3] The Claimant lost her job. The Claimant’s employer says that she was let go because she went against its vaccination policy: she didn’t get vaccinated.

[4] Even though the Claimant doesn’t dispute that this happened, she says that going against her employer’s vaccination policy isn’t misconduct.

[5] The Commission accepted the employer’s reason for the dismissal. It decided that the Claimant lost her job because of misconduct. Because of this, the Commission decided that the Claimant is disqualified from receiving EI benefits.

[6] The Claimant says that it isn’t morally or ethically right for her employer to mandate vaccination. She says she had the right to her control what happens to her body. She says that there are no long-term studies into adverse effects from the vaccine. She says that the policy is against a number of laws and legal principles, including: vaccination wasn’t part of her employment agreement, informed consent, coercion, medical ethics, and the Nuremburg Code.

Issue

[7] Did the Claimant lose her job because of misconduct?

Analysis

[8] 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 2}

[9] To answer the question of whether the Claimant lost her job because of misconduct, I have to decide two things. First, I have to determine why the Claimant lost her job. Then, I have to determine whether the law considers that reason to be misconduct.

Why did the Claimant lose her job?

[10] I find that the Claimant lost her job because she went against her employer’s vaccination policy.

[11] The Claimant doesn’t dispute this happened.

[12] The Commission says that the Claimant willfully violated the policy and that she knew the consequences of not following the policy.

[13] I find that it is undisputed that Claimant lost her job because she went against her employer’s vaccination policy.

Is the reason for the Claimant’s dismissal misconduct under the law?

[14] The reason for the Claimant’s dismissal 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 Claimant’s dismissal 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 3} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 4} The Claimant 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 5}

[17] There is misconduct if the Claimant 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 let go because of that.^{Footnote 6}

[18] The law doesn’t say I have to consider how the employer behaved.^{Footnote 7} Instead, I have to focus on what the Claimant did or failed to do and whether that amounts to misconduct under the Act.^{Footnote 8}

[19] I have to focus on the Act only. 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} I can consider only one thing: whether what the Claimant did or failed to do is misconduct under the Act.

[20] The Commission has to prove that the Claimant lost 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 Claimant lost her job because of misconduct.^{Footnote 10}

[21] The Commission says that there was misconduct because:

• The employer had a vaccination policy;
• The employer notified the Claimant about its expectations about getting vaccinated;
• The Claimant was aware of the policy; and,
• The Claimant was aware of the requirement to comply with the policy or face disciplinary action, including termination.

[22] The Claimant says that there was no misconduct because:

• The employer’s vaccination policy wasn’t morally or ethically right;
• She had the right to her control what happens to her body;
• There are no long-term studies into adverse effects from the vaccine;
• The employer and the Commission wouldn’t be held liable for any adverse effects she may experience due to the vaccine; and,
• The policy is against a number of laws and legal principles, including: vaccination wasn’t part of her initial employment agreement, informed consent, coercion, medical ethics, and the Nuremburg Code.

[23] The employer’s vaccination policy says that:

• Firm personnel must be fully vaccinated against COVID-19;
• Exemptions will only be granted in extraordinary cases, in which the employer will consider reasonable accommodation as required under human rights legislation; and,
• Failure to comply with the policy may lead to disciplinary action, including an unpaid leave of absence and termination.^{Footnote 11}

[24] The Claimant testified that she was made aware of the policy around August 19, 2021. She says she was aware that firm personnel must be fully vaccinated. She says she was aware of the consequences of not following the policy, including unpaid leave and termination.

[25] The Claimant made a written request to her employer for a religious exemption, in letter dated September 23, 2021.^{Footnote 12} Her employer denied her request for accommodation, in letter dated October 7, 2021. It said that she hasn’t provided sufficient evidence that her request qualifies for accommodation.^{Footnote 13}

[26] The Claimant was put on unpaid leave starting October 19, 2021, as she didn’t follow the policy. The employer wrote to the Claimant, in letter dated November 9, 2021, stating that she will be terminated as she hasn’t followed the policy and didn’t provide more information about her request for accommodation.^{Footnote 14} Her employment was terminated for not following the vaccination policy, in letter dated January 18, 2022.^{Footnote 15}

[27] I find that the Commission has proven that there was misconduct because:

• The employer had a vaccination policy that said firm personnel must be fully vaccinated against COVID-19;
• The employer clearly told the Claimant about what it expected of its employees in terms of getting vaccinated;
• The employer sent letters to the Claimant several times to communicate what it expected; and,
• The Claimant knew or should have known the consequence of not following the employer’s vaccination policy.

So, did the Claimant lose her job because of misconduct?

[28] Based on my findings above, I find that the Claimant lost her job because of misconduct.

[29] This is because the Claimant’s actions led to her dismissal. She acted deliberately. She knew that refusing to get vaccinated was likely to cause her to lose her job.

Conclusion

[30] The Commission has proven that the Claimant lost her job because of misconduct. Because of this, the Claimant is disqualified from receiving EI benefits.

[31] This means that the appeal is dismissed.