Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] K. K. is the Claimant in this case. She worked in administrative role for a university. When she stopped working, she applied for Employment Insurance (EI) regular benefits.

[3] The Canada Employment Insurance Commission (Commission) decided that she could not get EI regular benefits because she was dismissed due to misconduct.^{Footnote 1}

[4] The General Division came to the same conclusion.^{Footnote 2} It said that the Claimant was aware of her employer’s Covid-19 vaccination policy, had enough time to comply and should have known the consequences of non-compliance.

[5] The Claimant is now asking for permission to appeal the General Division decision to the Appeal Division.^{Footnote 3} She needs permission for the appeal to move forward.

[6] I am denying the Claimant’s request for permission to appeal because it has no reasonable chance of success.^{Footnote 4}

Preliminary matter

[7] The Claimant applied to the Appeal Division explaining why she disagreed with the General Division decision.^{Footnote 5}

[8] The Claimant didn’t fill out the correct forms, so the Tribunal sent her a letter on April 17, 2023, asking her for more information about her appeal. The letter asked the Claimant to identify the type of error made and to provide reasons based on what the Appeal Division could consider. The deadline to reply letter was April 28, 2023.

[9] The Claimant asked the Tribunal for an extension to reply.^{Footnote 6} She then asked for a second extension to reply. The new deadline was May 19, 2023.

[10] As of the date of this decision, the Tribunal has not received a reply to the letter or any communication from the Claimant.

Issue

[11] Is there an arguable case that the General Division made a reviewable error?

Analysis

The test for getting permission to appeal

[12] An appeal can proceed only if the Appeal Division gives permission to appeal.^{Footnote 7}

[13] I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 8} This means that there must be some arguable ground upon which the appeal might succeed.^{Footnote 9}

[14] I can only consider certain types of errors. I have to focus on whether the General Division could have made one or more of the relevant errors (this is called the “grounds of appeal”).^{Footnote 10}

[15] The possible grounds of appeal to the Appeal Division are that the General Division did one of the following:^{Footnote 11}

• proceeded in a way that was unfair
• acted beyond its powers or refused to exercise those powers
• made an error in law
• based its decision on an important error of fact

[16] For the appeal to proceed, I have to find that there is a reasonable chance of success on one of the grounds of appeal.^{Footnote 12}

I am not giving the Claimant permission to appeal

[17] The Claimant disagrees with the decision and argues the following in this appeal:^{Footnote 13}

• First, she says that the General Division relied on cases that were not similar to her own case. She says those cases involved illicit drugs and an existing drug policy, unlike the new vaccination policy implemented at her workplace.
• Second, the employer changed the terms of her contract without her consent.
• Third, her conduct was not misconduct and it was not wilful.

[18] The Claimant did not identify which specific type error that she thinks the General Division made. Even so, I have considered whether there were any reviewable errors based on the information that she provided.^{Footnote 14}

The General Division decided that the Claimant was dismissed due to misconduct

[19] The General Division had to decide whether the Commission had proven that the Claimant was dismissed due to misconduct according to the Employment Insurance Act (EI Act).

[20] The law says that a Claimant who is suspended or dismissed because of misconduct is not entitled to receive EI benefits.^{Footnote 15}

[21] Misconduct is not defined in the EI Act, but the Federal Court of Appeal (Court) has provided a definition. In the Mishibinijima decision, the Court defined “misconduct” as conduct that is wilful, which means that the conduct was conscious, deliberate, or intentional.^{Footnote 16}

[22] The Court has also said there is misconduct if the Claimant knew or should have known the conduct could get in the way of carrying out their duty to the employer and that dismissal was a real possibility.^{Footnote 17}

[23] This is a summary of the General Division’s key findings in this case:

• The Claimant was dismissed on February 23, 2022 because of misconduct resulting in a disqualification to EI benefits.^{Footnote 18}
• The Claimant was aware of the vaccination policy and knew that she needed to be fully vaccinated for COVID-19. As well, she had enough time to comply.^{Footnote 19}
• The Claimant made a conscious, deliberate and intentional choice to not comply with the vaccination policy.^{Footnote 20}
• The Claimant went against the vaccination policy and that got in the way of carrying out her duties.^{Footnote 21}
• The Claimant knew or should have known the consequences of non-compliance would lead to her dismissal.^{Footnote 22}

The General Division relied on relevant case law

[24] The Claimant argues that the General Division relied on Court cases that are not similar because they involved illicit drugs and an existing drug policy.^{Footnote 23} She says that the vaccination policy at her workplace did not exist when she was hired, unlike the drug policies in those cases.

[25] The Claimant doesn’t identify the specific cases, but I think the Claimant was referring to the McNamara or the Paradis decisions from the Federal Court and Federal Court of Appeal. I note that the General Division relied on both of these cases in its decision.^{Footnote 24} Also, both cases involved employees who were dismissed for misconduct because they breached their employer’s drug policy.^{Footnote 25}

[26] It looks like the Claimant might be arguing that these cases are not relevant because the facts are different from her own case. So, I will review what the General Division said about the cases.

[27] First, the General Division relied on McNamara decision to say that the focus is on the employee’s behaviour, not the employer’s conduct.^{Footnote 26} Referring to McNamara, the General Division said that the employees who have been wrongfully dismissed have other solutions available to them to penalize the employer’s behaviour rather than have taxpayers pay for the employer’s actions through EI benefits.^{Footnote 27}

[28] Second, the General Division relied on the Paradis decision to further support that the focus is on what the Claimant did or failed to do and whether amounts to misconduct.^{Footnote 28}

[29] The General Division acknowledged that the McNamara and Paradis had different facts from the Claimant’s case. In paragraph 25 of its decision, it said:

These cases aren’t about COVID-19 vaccination policies. But what they say is still relevant. My role is not to look at the employer’s behaviour or policies and determine whether it was right to dismiss the Appellant. Instead, I have to focus on what the Appellant did or failed to do and whether that amounts to misconduct under the Act.

[30] The General Division correctly focused its analysis on the Claimant’s conduct and not the employer’s conduct. This is what the case law says to do.

[31] Even though the facts are different in this case, and they do not involve drugs or an existing drug policy, the legal principles from McNamara and Paradis are still relevant and applicable in EI misconduct cases.

[32] The Claimant’s other arguments to the Appeal Division include that there was no vaccination policy when she was hired and that the employer changed the terms of her employment without her consent. However, the Court has already established that the focus is on the employee’s conduct, not the employer’s conduct.

There was a similar case heard by the Federal Court

[33] The Federal Court has confirmed the Tribunal’s limited jurisdiction in the recent Cecchetto decision. The General Division did not specifically refer to the Cecchetto decision, but it is factually similar to this case.^{Footnote 29}

[34] That Cecchetto case involved a person who was suspended and dismissed for misconduct because he did not comply with his employer’s COVID-19 vaccination policy.^{Footnote 30} Because of that he was not entitled to receive EI benefits.^{Footnote 31}

[35] In paragraph 32 of the Cecchetto decision, the Court said:

While the Applicant is clearly frustrated that none of the decision-makers have addressed what he sees as the fundamental legal or factual issues that he raises – for example regarding bodily integrity, consent to medical testing, the safety and efficacy of the COVID-19 vaccines or antigen tests – that does not make the decision of the Appeal Division unreasonable. The key problem with the Applicant’s argument is that he is criticizing decision-makers for failing to deal with a set of questions they are not, by law, permitted to address.

[36] The Claimant was asking the General Division to decide issues that it cannot decide. The Cecchetto decision supports the Tribunal’s narrow role, namely that those issues are not within the Tribunal’s mandate or jurisdiction to decide.

[37] The General Division acknowledged the Claimant’s other arguments around the employer’s conduct: breach of contract, discrimination, accommodation, and wrongful dismissal, but it decided that it did not have the authority to address them.^{Footnote 32}

[38] The General Division did say that if the employer breached the employment contract, she could seek recourse at another Court or Tribunal.^{Footnote 33} The Court in Cecchetto noted there are other ways in which these claims can be properly advanced under the legal system.^{Footnote 34}

[39] It is clear that the Claimant disagrees with the General Division’s decision. However, an appeal to the Appeal Division is not a new hearing. I cannot reweigh the evidence in order to come to a different conclusion that is more favourable for the Claimant.^{Footnote 35}

[40] So, it is not arguable that the General Division made any reviewable errors for the following reasons.^{Footnote 36}

[41] The General Division relied on the relevant section of the EI Act.^{Footnote 37} It also stated and applied the above legal test for misconduct based on what the Court has said.^{Footnote 38}

[42] The General Division relied on binding case law from the Court when it characterized misconduct the way it did.^{Footnote 39} It had to focus on the Claimant’s conduct and not the employer’s conduct. It is undisputed that the Claimant did not comply with the policy.^{Footnote 40}

[43] Lastly, the General Division’s key findings were supported by the evidence, and it only decided the issues it had the power to decide.

There are no other reasons for giving the Claimant permission to appeal

[44] I reviewed the file, listened to the audio recording of the General Division hearing, and examined the General Division decision.^{Footnote 41} I did not find any relevant evidence that the General Division might have ignored or misinterpreted. There is no reasonable chance of success.

Conclusion

[45] Permission to appeal is refused. This means that the appeal will not proceed.