Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. This means the appeal will not proceed.

Overview

[2] The Applicant (Claimant) was suspended from her job because she did not comply with the employer’s COVID-19 vaccination policy (Policy). She was not granted an exemption. The Claimant then applied for Employment Insurance (EI) regular benefits.

[3] The Respondent (Commission) determined that the Claimant was suspended from her job because of misconduct, so it was not able to pay her benefits. After an unsuccessful reconsideration, the Claimant appealed to the General Division.

[4] The General Division found that the Claimant was suspended from her job following her refusal to follow the employer’s Policy. She was not granted an exemption. It found that the Claimant knew or should have known that the employer was likely to suspend her in these circumstances. The General Division concluded that the Claimant was suspended from her job because of misconduct.

[5] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that the General Division based its decision on important errors of fact and that it made an error of law when it concluded that she was suspended for misconduct.

[6] I must decide whether the Claimant raised some reviewable error of the General Division upon which the appeal might succeed.

[7] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[8] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

Preliminary matters

[9] It is well established that I must consider the evidence presented to the General Division to decide the present application for leave to appeal. The Appeal Division powers are limited.^{Footnote 1}

[10] The Claimant filed links in support of her position before the General Division. As explained by the General Division, the Tribunal does not follow links. I did not consider these links to decide the present application.

Analysis

[11] Section 58(1) of the Department of Employment and Social Development Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

[12] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[13] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success.  

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[14] In support of her application for leave to appeal, the Claimant submits the following grounds of appeal:

1. a) She had the right to exercise her safety and health rights, free from disciplinary action, such as being suspended, or being labelled as having committed misconduct;
2. b) She showed evidence of how her employer agreed that the vaccine was dangerous in their safety data sheets;
3. c) If the Tribunal member does not have the authority or ability to determine whether or not unsafe workplace conditions existed, it also does not have the authority or ability to determine that the employer offered a safe alternative to the choice she made;
4. d) None of the cases the General Division mentioned involved the employer requiring the employee to inject substances into their body that the employer themselves have determined to be dangerous for human diagnostic and therapeutic use, as indicated on their own safety data sheets, as a matter of continued employment;
5. e) It is not misconduct for her to refuse to inject into her body the substances deemed as dangerous and not for human consumption on her employer’s safety data sheets;
6. f) Any lack of authority and ability on the part of the Tribunal member does not invalidate nor eliminate her legal ability to refuse to work in dangerous conditions without fear of reprisal;
7. g) The Tribunal member has given no viable nor logical explanation for deeming it as anything, but a workplace refusal let alone reason for deeming it as something that neither her employer nor herself claim it is.

[15] The General Division had to decide whether the Claimant was suspended from her job because of misconduct.

[16] It was up to the General Division to verify and interpret the facts of the present case and make its own assessment on the issue of misconduct. It is not bound on how the Claimant, nor her employer characterized their separation.^{Footnote 2}

[17] The evidence shows that the employer prevented the Claimant from working after November 26, 2021. The Claimant recognized that the leave was force upon her and that she would have continued working if not for the Policy. The employer stopped the Claimant from working even though there was work. The Claimant temporarily loss her employment. She was therefore suspended under the EI Act.^{Footnote 3}

[18] The notion of misconduct does not imply that it is necessary that the breach of conduct be the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate, or intentional. In other words, in order to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects their actions would have on their performance.

[19] The General Division’s role is not to judge the severity of the employer’s penalty or to determine whether the employer was guilty of misconduct by suspending the Claimant in such a way that her suspension was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to her suspension.

[20] It was also not necessary for the General Division to decide as to whether the employer could, under the Collective Bargaining Agreement (CBA), put the Claimant on an “unpaid leave” for refusing to follow their Policy. It is well established that an employer’s discipline procedure is irrelevant to determine misconduct under the EI Act.^{Footnote 4}

[21] It is important to keep in mind that “misconduct” has a specific meaning for EI purposes that does not necessarily correspond to its everyday usage. An employee may be disqualified from receiving EI benefits because of misconduct under the EI Act, but that does not necessarily mean that they have done something “wrong” or “bad.”^{Footnote 5}

[22] Based on the evidence, the General Division determined that the Claimant was suspended because she refused to follow the Policy. She had been informed of the employer’s Policy and was given time to comply. She was not granted an exemption. The Claimant refused intentionally; this refusal was wilful. This was the direct cause of her suspension.

[23] The General Division found that the Claimant knew or ought to have known that his refusal to comply with the Policy could lead to her suspension.

[24] The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct.

[25] A deliberate violation of the employer’s policy is considered misconduct within the meaning of the EI Act.^{Footnote 6} It is also considered misconduct within the meaning of the EI Act not to observe a policy duly approved by a government or an industry.^{Footnote 7}

[26] It is not really in dispute that an employer has an obligation to take all reasonable precautions to protect the health and safety of its employees in their workplace. The Federal Government's mandate required all federally regulated workers to be vaccinated. The Policy was in effect when the Claimant was suspended.

[27] It is not for this Tribunal to decide whether the employer’s health and safety measures regarding COVID-19 were efficient or reasonable. In other words, ruling on a health and safety issue is well beyond the scope of the Tribunal’s expertise in EI matters and lies outside its jurisdiction.

[28] The question of whether the employer violated her CBA or her right to refuse unsafe working conditions, or whether the Policy violated her human and constitutional rights, is a matter for another forum. This Tribunal is not the appropriate forum through which the Claimant can obtain the remedy that she is seeking.^{Footnote 8}

[29] The Federal Court of Canada has rendered a recent decision in Cecchetto regarding misconduct and a claimant’s refusal to follow the employer’s COVID-19 vaccination policy. The claimant Cecchetto submitted that refusing to abide by a vaccine policy unilaterally imposed by an employer is not misconduct. He put forward that it was not proven that the vaccine was safe and efficient. The claimant felt discriminated against because of his personal medical choice. The claimant submitted that he has the right to control his own bodily integrity and that his rights were violated under Canadian and international law.^{Footnote 9}

[30] The Federal Court confirmed the Appeal Division’s decision that, by law, this Tribunal is not permitted to address these questions. The Court agreed that by making a personal and deliberate choice not to follow the employer’s vaccination policy, the claimant had breached his duties owed to his employer and had lost his job because of misconduct under the EI Act.^{Footnote 10} The Court stated that there exist other ways in which the claimant’s claims can properly advance under the legal system.

[31] In the previous Paradis case, the claimant was refused EI benefits because of misconduct. He argued that there was no misconduct because the employer’s policy violated his rights under the Alberta Human Rights Act. The Federal Court found it was a matter for another forum.

[32] The Federal Court stated that there are available remedies for a claimant to sanction the behaviour of an employer other than transferring the costs of that behaviour to the Employment Insurance Program.

[33] As stated previously, the General Division’s role is not to determine whether the employer was guilty of misconduct by suspending the Claimant in such a way that her suspension was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to her suspension.

[34] The preponderant evidence before the General Division shows that the Claimant made a personal and deliberate choice not to follow the employer’s Policy in response to the exceptional circumstances created by the pandemic and this resulted in her being suspended from work.

[35] I see no reviewable error made by the General Division when it decided the issue of misconduct solely within the parameters set out by the Federal Court of Appeal, which has defined misconduct under the EI Act.^{Footnote 11}

[36] I am fully aware that the Claimant may seek relief before another forum if a violation is established. This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant was suspended because of misconduct.

[37] After reviewing the appeal file and the General Division’s decision as well as considering the Claimant’s arguments in support of her request for leave to appeal, I have no choice but to find that the appeal has no reasonable chance of success. The Claimant has not set out a reason, which falls into the above-enumerated grounds of appeal that could possibly lead to the reversal of the disputed decision.

Conclusion

[38] Leave to appeal is refused. This means the appeal will not proceed.