Employment Insurance (EI)

Decision

[1] I am refusing the Claimant permission to appeal because she does not have an arguable case. This appeal will not be going forward.

Overview

[2] The Claimant, J. B., was employed by Bell Canada as a customer service representative. On January 31, 2022, Bell placed the Claimant on an unpaid leave of absence after she refused to get vaccinated for COVID-19. The Canada Employment Insurance Commission (Commission) decided that it didn’t have to pay the Claimant EI benefits because her failure to comply with her employer’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 her 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. She alleges that the General Division made the following errors:

• It ignored the fact that her employer attempted to impose a new condition of employment without her consent;
• It ignored the fact that her employment contract said nothing about forcing her to undergo medical treatment;
• It disregarded evidence that her employer’s mandatory vaccination policy violated her common-law right to control what happens to her body; and
• It ignored evidence that her employer rejected her request for a religious exemption for no good reason.

Issue

[5] There are four grounds of appeal to the Appeal Division. An appellant 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 her 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 when it found that the Claimant lost her 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 misinterpreted the law

[9] 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

[10] The Claimant argues that she is not guilty of misconduct because she did nothing wrong. She suggests that, by forcing her to get vaccinated under threat of dismissal, her employer infringed her rights. She maintains that her employer was attempting to force an unethically developed vaccine on her against her will.

[11] I can understand the Claimant’s frustration but, based on law as it exists, I don’t see a case for her arguments.

[12] 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:

Case law says that to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional. Misconduct also includes conduct that is so reckless that it is almost wilful. 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.

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 4}

[13] These paragraphs show that the General Division accurately summarized the law around misconduct. The General Division went on to correctly find that 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

The Claimant argues that her employer’s mandatory vaccination policy violated her rights, but that is not the issue here. What matters is whether the employer has a policy and whether the employee deliberately disregarded it. In its decision, the General Division put it this way:

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 dismissed or whether the employer should have made reasonable arrangements (accommodations) for the Appellant aren’t for me to decide. I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act.^{Footnote 5}

[14] Because the law forced it to focus on narrow questions, the General Division had no authority to decide whether Bell’s policy contradicted the Claimant’s employment contract or violated her rights. Nor did the General Division have any authority to decide whether Bell should have accommodated the Claimant in some way or whether its exemption request process was flawed.

A recent case validates the General Division’s interpretation of the law

[15] 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 involvedan appellant’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}

[16] 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 Mr. Cecchetto could have advanced his wrongful dismissal or human rights claims.

[17] That’s also true in this case. Here, the only questions that mattered were whether the Claimant breached her employer’s vaccination policy and, if so, whether that breach was deliberate and foreseeably likely to result in her suspension or dismissal. In this case, the General Division had good reason to answer “yes” to both questions.

There is no case that the General Division ignored or misunderstood the evidence

[18] At the General Division, the Claimant submitted a letter from her church outlining her faith-based objections to the vaccine’s development. She maintained that Bell should have given her an exemption from having to get vaccinated on religious grounds. She is now arguing that the General Division ignored evidence that Bell acted unfairly by systematically denying all applications for religious exemption.

[19] From what I can see, the General Division didn’t ignore the Claimant’s submissions on these points. Instead, it simply didn’t think they were convincing or, given the state of the law, relevant.

[20] The General Division based its decision on the following findings:

• The Claimant’s employer was free to establish and enforce a vaccination policy as it saw fit;
• The employer adopted and communicated a clear policy requiring employees to provide proof that they had been fully vaccinated by a specified deadline;
• The Claimant knew, or should have known, that failure to comply with the policy by the specified deadline would cause loss of employment; and
• The Claimant intentionally refused to get vaccinated by the deadline.

[21] These findings appear to accurately reflect the documents on file, as well as the Claimant’s testimony. The General Division concluded that the Claimant had committed misconduct because her refusal to follow her employer’s policy was deliberate, and it foreseeably led to her dismissal. The Claimant may have believed that refusing to comply with the policy would not do her employer any harm but, from an EI standpoint, that was not her call to make.

[22] The Claimant says that the General Division ignored her deeply held religious objections to vaccination, along with evidence that she qualified for an exemption under her employer’s vaccination policy.

[23] However, the General Division didn’t ignore the Claimant’s attempt to secure a religious exemption. In its decision, the General Division wrote:

Based on this evidence, I’m not persuaded the Appellant’s employer didn’t approve any exemption requests. The Appellant could only say she thought this might have happened based on what others in her WhatsApp group said, not that she knew for sure it had happened to all employees. She also couldn’t provide any evidence besides what she said. So, I don’t give this argument much weight here.

Additionally, I acknowledge the Appellant feels her religious exemption request should have been approved and she shouldn’t have had to get vaccinated because she worked from home full-time.

But I find these arguments aren’t relevant here either. As noted above, the Act and the Court say I must focus on the Appellant’s actions, not the employer’s, when analyzing misconduct.^{Footnote 8}

[24] The General Division was barred from considering what her employer did or didn’t do. Instead, the General Division was required to focus on the Claimant’s behaviour and whether that behaviour amounted to misconduct as defined by the EI Act and related case law.

Conclusion

[25] 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.