Employment Insurance (EI)

Decision

[1] I am dismissing M. C.’s appeal.

[2] The Canada Employment Insurance Commission (Commission) has proven M. C.’s employer suspended him for a reason the Employment Insurance Act (EI Act) counts as misconduct. In other words, he did something that caused his suspension.^{Footnote 2}

[3] So under the EI Act he isn't entitled to receive benefits.^{Footnote 3}

[4] This means the Commission made the correct decision in his EI claim.

Overview

[5] At the end of October 2021 M. C. (Appellant) was suspended from his job with Air Canada (employer). He worked as a cargo customer service representative.

[6] The employer says it put him on an unpaid leave of absence because he didn’t follow its mandatory COVID vaccination policy (vaccination policy).

[7] The Commission decided the Appellant was suspended from his job for a reason the EI Act considers to be misconduct. So the Commission didn’t pay him EI regular benefits.^{Footnote 4}

[8] The Appellant disagrees. He says his employer’s conduct caused his non-compliance with the vaccination policy. So his conduct wasn’t intentional and doesn’t meet the legal test for misconduct.

[9] I have to decide the reason the Appellant was suspended. And whether that reason is misconduct under the EI Act.

Matters I have to consider first

The Appellant withdrew his Charter challenge

[10] In his appeal notice the Appellant makes legal arguments based on the Canadian Charter of Rights and Freedoms (Charter).

[11] I held a pre-hearing conference on October 28, 2022. I reviewed the Tribunal’s decision-making power and its process to hear and decide a Charter challenge.^{Footnote 5} I explained to the Appellant if he decided to drop his Charter challenge, he could not make Charter arguments in this appeal or if he appeals this decision to the Appeal Division.

[12] I gave the Appellant two weeks to consider whether he wanted to go ahead with his Charter challenge.^{Footnote 6} The Appellant told the Tribunal he would not go ahead with it.^{Footnote 7}

[13] So I don't have to consider the Appellant’s Charter (or other constitutional) arguments when I decide this appeal.

Documents sent in after the hearing

[14] The Appellant and the Respondent asked to send in documents after the hearing. They referred to these documents (evidence, Tribunal decisions, and court decisions) during the hearing.

[15] At the end of the hearing we (the Appellant, the Respondent and I) agreed to a schedule for them to send documents to the Tribunal.

[16] I have reviewed and considered the documents they sent.^{Footnote 8}

[17] One of the documents the Appellant sent in is about types and signs of abuse.^{Footnote 9}

[18] I will accept all the documents sent in after the hearing. For two reasons: First, I agreed the parties could send these documents. Second, the cases the parties sent in are relevant to the legal issue I have to decide. And the Appellant’s types and signs of abuse document is relevant to his argument based on the Astolfi case.

Issue

[19] Did the Appellant get suspended from his job for a reason the EI Act says is misconduct?

Analysis

[20] 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 10}

[21] I have to decide two things.

• the reason the Appellant was suspended from his job
• whether the EI Act considers that reason to be misconduct

The reason the Appellant was suspended from his job

[22] I find the Appellant’s employer suspended him because he didn’t follow its vaccination policy.

[23] The Appellant says in his appeal notice he was placed on a “forced unpaid leave of absence”.^{Footnote 11}

[24] The Commission says the Appellant's leave of absence without pay counts as a suspension under section 31 of the EI Act.^{Footnote 12}

[25] I have to look at the facts and evidence through the lens of the EI Act. Under the EI Act a “forced unpaid leave of absence” means the same thing as a “suspension”.

[26] So I find the Appellant and the Commission agree that his employer suspended him (in the EI Act sense of that word) for not complying with its vaccination policy.

[27] I have no reason to doubt what the Appellant and his employer said. And there's no evidence that goes against what they said.

The reason is misconduct under the law

[28] The Appellant’s failure to follow his employer’s vaccination policy is misconduct under the EI Act.

What misconduct means under the EI Act

[29] The EI Act doesn’t say what misconduct means. Court decisions set out the legal test for misconduct. The legal test tells me the types of facts and the legal issues I have to look at when making my decision.

[30] The Commission has to prove it is more likely than not the Appellant was suspended from her job for misconduct under the EI Act, and not for another reason.^{Footnote 13}

[31] The Appellant doesn’t have to have wrongful intent. In other words, he doesn’t have to mean to do something wrong for me to decide her conduct is misconduct.^{Footnote 14} To be misconduct, his conduct has to be wilful, meaning conscious, deliberate, or intentional.^{Footnote 15} And misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 16}

[32] There's misconduct if the Appellant knew or should have known her conduct could get in the way of carrying out her duties toward her employer and knew or should have known there was a real possibility of being suspended because of that.^{Footnote 17}

[33] I have to focus on what the Appellant did or did not do, and whether that conduct amounts to misconduct under the EI Act.^{Footnote 18} I can’t consider whether the employer’s policy is reasonable, or whether a suspension was a reasonable penalty.^{Footnote 19}

[34] Finally, I can only decide whether there was misconduct under the EI Act. I can’t make my decision based on other laws.^{Footnote 20}

The Cecchetto case

[35] The Federal Court recently released its first EI decision about misconduct where an appellant didn’t follow their employer’s COVID vaccination policy.^{Footnote 21} In Cecchetto the Court confirmed the Tribunal: ^{Footnote 22}

• has an “important, but narrow and specific role” in these cases
• has to decide two things: why the appellant was dismissed and whether that reason is “misconduct” under the EI Act

[36] Cecchetto also confirms the legal test for misconduct set by earlier Federal Court decisions.^{Footnote 23}

[37] Finally, Cecchetto says the Tribunal doesn’t have the power to rule on the merits, legitimacy, or legality of government directives and policies aimed at addressing the COVID pandemic.^{Footnote 24} Appellants have other legal options to challenge vaccine mandates and employers’ policies.

[38] So I won’t consider the Appellant’s arguments that his conduct isn’t misconduct because:

• COVID vaccines aren’t safe or effective and he has better protection from COVID infection and hospitalization because he had already been infected with COVID
• his employer’s policy and its decision to force him on an unpaid leave of absence because he didn’t follow its vaccination policy go against his collective agreement, the Canadian Bill of Rights, Alberta and BC occupational health and safety laws and workers’ compensation laws, the Canada Labour Code, or the Canadian Human Rights Act
• his employer breached the collective agreement in the way it handled his religious exemption request, and violated its own accommodation policy
• his employer had a duty to consult the union before adopting its vaccination policy, and consult the union when it assessed and decided his religious exemption request

[39] The Appellant and his union have filed two grievances. They can raise these arguments in those grievances if they want.

My reasons for not following the Astolfi case

[40] To be misconduct, the Appellant’s conduct has to be wilful, meaning conscious, deliberate, or intentional.^{Footnote 25}

[41] The Appellant says his refusal to follow his employer’s vaccination policy wasn’t intentional. He says I should follow the Federal Court decision in Astolfi.^{Footnote 26} That case says the Tribunal can look at an employer’s conduct when it decides whether the employee’s conduct was intentional.

[42] I don’t agree with the Appellant’s argument. And I am not going to follow Astolfi for the following reasons.

[43] Astolfi narrows a general rule in misconduct cases. The general rule says the Tribunal should focus on the employee’s conduct, not the employer’s conduct.

[44] Astolfi says there is an important difference between an employer’s conduct:

• before the employee’s alleged misconduct, and
• after the employee’s alleged misconduct

[45] The Tribunal should consider whether an employer’s conduct before led to the employee’s alleged misconduct.^{Footnote 27} If it did, the employee’s conduct might not be wilful (conscious, deliberate, intentional) or reckless to the point of being wilful.

[46] The Appellant says his conduct isn’t misconduct because his employer mentally mistreated and emotionally abused him.^{Footnote 28} He says his employer’s conduct made him fear his employer and placed him in an impossible situation.^{Footnote 29}

[47] He framed it as a workplace health and safety issue. He was fearful of the side-effects of COVID vaccination his employer was forcing on him. And because of his religious beliefs as a Catholic he believed his metaphysical safety was in jeopardy.

[48] He says he could not follow the vaccination and reporting part of the policy because his employer didn`t fulfill its obligation to:^{Footnote 30}

• follow through on the religious exemption part of the policy
• provide him with any information about vaccine safety, health risks, risk/benefit analysis
• address his religious concerns
• follow health and safety legal requirements under Canadian Labour Law and Provincial Labour Codes and Laws and the employers own Corporate Safety Policy and safety training courses

[49] The facts in this appeal are totally different from the facts in Astolfi.

[50] I don’t believe his employer harassed him, mentally mistreated him, or emotionally abused him. And I don’t believe his employer put his health or safety at risk. There is no credible evidence of that. And he didn’t give any evidence that he had signs of mental mistreatment or emotional abuse.

[51] The opposite is true. The Commission’s reconsideration file shows me the Appellant was extremely active, engaged, and communicative in response to his employer’s policy and decisions under it. He challenged his employer throughout the fall of 2021. And he challenged the Commission’s decision to deny him EI, repeatedly and persistently, on the phone and in writing.

[52] The Appellant raised the mental mistreatment and emotional abuse argument for the first time in the submission he sent right before his hearing. That argument—and the evidence he relies on—doesn’t fit with what he said before that.

[53] The employer adopted and followed is vaccination policy. It didn’t cause the Appellant’s misconduct—his refusal to comply with its vaccination policy.

[54] I find that Appellant intentionally, consciously, and deliberated decided not to follow his employer’s vaccination policy. He disagrees with the vaccination policy. He disagrees with the process his employer followed because it didn’t consult him enough. He disagrees with mandated vaccination because it was against his religious beliefs and his understanding of constitutional laws. He disagrees with the COVID vaccine because its not safe or effective. And he disagrees with his suspension.

[55] The Appellant`s argument really isn't about anything his employer did or didn’t do to him. He is using Astolfi to challenge his employer’s vaccination policy and decisions it made under it. But Cecchetto makes it clear the Tribunal can’t consider these challenges.

[56] I appreciate the Appellant was under tremendous stress, and may have felt mental anguish, in October 2021. Given his personal and religious beliefs, he was faced with an incredibly difficult decision. But this doesn’t change the fact that nothing his employer did amounted to mental mistreatment, emotional abuse, or harassment. His employer followed its vaccination policy. And the Appellant ultimately made the difficult decision not to comply with it because he believed he shouldn’t have to.

The other parts of the legal test for misconduct

[57] I find the Commission has proven the Appellant knew or should have known what he had to do under his employer`s vaccination policy. And I find it has proven the Appellant knew or should have known that he could be suspended if he didn’t comply with the vaccination policy.

[58] The Appellant told the Commission his employer advised him in August 2021 he would have to give his employer proof of vaccination, or his employer would place him on an unpaid leave.^{Footnote 31}

[59] The vaccination policy says:^{Footnote 32}

• it applies to all employees
• employees with medical, religious or other reasons based on prohibited ground of discrimination can apply to the employer for accommodation—to be exempted from the policy
• all employees without and approved accommodation must get “fully vaccinated” (which is defined in policy), and report their vaccination status and give proof of vaccination through the employer`s on-line reporting tool by October 30, 2022
• employees who don’t get fully vaccinated, report, and give proof are in non-compliance with the policy
• employees who aren't granted an accommodation (exemption) and who are in non-compliance with the policy are prohibited from entering any of the employer`s workplaces, considered unavailable to fulfill their duties, and will be placed on an unpaid leave of absence for 6 months (to April 30), after which their continuing relationship with the employer will be reassessed

[60] On September 8, 2021 the Appellant applied for an exemption from the vaccination policy on religious grounds. His employer denied his application and told him he was in non-compliance with its vaccination policy.^{Footnote 33}

[61] At the hearing, the Appellant testified he knew if he got fully vaccinated his employer would lift his suspension and he could return to work.

[62] I have no reason to doubt the authenticity of the employer`s policy. I accept what the Appellant told the Commission about what the knew and when he knew it. His employer conformed the relevant dates and deadlines in a call with the Commission. The vaccination policy is also consistent with what the Appellant told the Commission. And there is no dispute his employer refused his exemption request.

[63] So based on the facts I have accepted, I find the Appellant knew or should have known he had to be fully vaccinated, and report and give proof to his employer. And he knew or should have known if he didn`t, his employer would suspend him.

The Appellant’s other arguments

AL v CEIC

[64] The Appellant argues I should follow AL v CEIC, a decision of this Tribunal.

[65] I don’t have to follow other decisions of this Tribunal. I can rely on them to guide me where I find them persuasive and helpful.^{Footnote 34}

[66] I am not going to do follow AL v CEIC.^{Footnote 35} With the respect owed to my colleague who decided that appeal, I am not persuaded by his findings and the reasoning he relied on to get to those findings. His decision goes against the legal test the Federal Court has set out for misconduct.^{Footnote 36} Our Tribunal does not have the legal authority (in law we call this “jurisdiction”) to do two things the Member did in AL v CEIC:

• First, he should not have interpreted and applied the collective agreement to find the employer had no authority to mandate that employees get vaccinated against COVID-19.^{Footnote 37}
• Second, he should not have found that the appellant had a right—in the employment context—to refuse to comply with the employer’s vaccination policy based on the law of informed consent to medical treatment.^{Footnote 38} In other words, he had no legal authority to add to the collective agreement an absolute right for a worker to choose to ignore the employer’s vaccination policy based on a rule imported from a different area of law.

[67] So the Member made two legal errors. And these errors led him to make the wrong decision in AL v CEIC.

The Appellant’s other arguments

[68] The Appellant sent the Tribunal three Tribunal decisions (not counting AL v CEIC) and three decisions from the Federal Court (not counting Astolfi). I have reviewed these decisions.

[69] I am not bound by earlier decisions of the Tribunal.^{Footnote 39} I have reviewed the decisions the Appellant sent. They don’t support his argument that he didn’t commit misconduct. In each of those decisions the facts are different from his appeal in legally relevant ways. So I am not going to follow the three Tribunal decisions.

[70] I have considered the Federal Court cases the Appellant sent. I find I don’t have to follow their reasons because the facts are different from the Appellant’s situation. Or they don’t add anything to the legal test for misconduct established in the cases I reviewed above, including Cecchetto.^{Footnote 40}

[71] The Appellant also argued the EI Digest of Benefit Entitlement Principles (Digest) supports his argument that his refusal to follow his employer’s vaccination policy isn’t misconduct.^{Footnote 41}

[72] The Digest is the Commission’s guide for its staff. It tells staff how to interpret and apply the EI Act when deciding EI claims. But it doesn’t bind the Tribunal. So I don’t have to follow it. And I am not going to in this case. I do have to follow the relevant Federal Court decisions, and the legal test for misconduct they have established. I have done that in this decision.

Conclusion

[73] The Commission has proven that the Appellant was suspended from his job for a reason the EI Act considers misconduct.

[74] This means he isn't entitled to receive EI regular benefits.

[75] So I am dismissing his appeal. Glenn Betteridge Member, General Division – Employment Insurance Section