Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The General Division did not make any reviewable errors.

Overview

[2] The Appellant, C. K. (Claimant) was suspended from her job because she did not comply with her employer’s vaccination policy. She applied for employment insurance (EI) benefits.

[3] The Respondent, the Canada Employment Insurance Commission (Commission) decided that the reason for the Claimant’s suspension amounted to misconduct, and she was disentitled from receiving benefits.

[4] The Claimant appealed this decision to the Tribunal’s General Division. The General Division found that the Commission had proven that the Claimant was suspended due to her misconduct. It found that she was disqualified from receiving benefits and dismissed her appeal.

[5] The Claimant is now appealing the General Division decision. She argues that the General Division made errors of law and based its decision on an important factual error.

[6] I am dismissing the Claimant’s appeal. The General Division did not make any reviewable errors in its decision. The Claimant was suspended due to misconduct and cannot be paid EI benefits.

Issues

[7] The issues in this appeal are:

1. a) Did the General Division make an error of law by failing to acknowledge the government’s violation of the Nuremburg Code?
2. b) Did the General Division err by failing to properly spell Queen Romana Didulo’s name in the decision or follow her royal decrees?
3. c) Did the General Division base it’s decision on an important factual error by not considering the Claimant’s doctor’s note and the fact that she was on sick leave?

Analysis

[8] I can intervene in this case only if the General Division made a relevant error. So, I have to consider whether the General Division:^{Note de bas page 1}

• failed to provide a fair process;
• failed to decide an issue that it should have decided, or decided an issue that it should not have decided;
• misinterpreted or misapplied the law; or
• based its decision on an important mistake about the facts of the case.

The General Division did not make any reviewable errors

The General Division decision

[9] The Claimant’s employer introduced a COVID-19 vaccination policy in October 2021, requiring employees to be fully vaccinated by December 17, 2021.^{Note de bas page 2}

[10] The Claimant applied for employment insurance sickness benefits. In her application, she said that her last day worked was December 3, 2021 and that she stopped working due to illness.^{Note de bas page 3} The Claimant’s record of employment showed that the last day that she was paid for was December 16, 2021 and that she was on a leave of absence.^{Note de bas page 4}

[11] The Claimant clarified that she was put on a leave of absence while she was off on sick leave. Her employer told her that she was being placed on a leave of absence because she did not comply with the vaccination policy.^{Note de bas page 5}

[12] The Commission initially decided that the Claimant was not entitled to benefits because she voluntarily left her job without just cause.^{Note de bas page 6} On reconsideration, it changed its decision and decided that she was disentitled because she was suspended due to her own misconduct.^{Note de bas page 7}

[13] The Claimant appealed this decision to the General Division. The General Division had to decide why the Claimant stopped working and whether this reason amounted to misconduct under the law.

[14] The General Division decided that the reason that the Claimant was suspended was because she didn’t comply with her employer’s vaccination policy.^{Note de bas page 8} It found that the Commission had proven that this reason amounted to misconduct under the EI Act. It based its decision on the following:

• The Claimant was aware of the policy requiring all employees to be fully vaccinated by December 17, 2021.^{Note de bas page 9}
• The Claimant was aware of the consequences of not complying with the policy.^{Note de bas page 10}
• The Claimant did not apply for an exemption to the requirement to be vaccinated.^{Note de bas page 11}
• The Claimant made a wilful decision not to comply with the policy.^{Note de bas page 12}

[15] The General Division also acknowledged that the Claimant made additional arguments concerning the following:

• The vaccine policy was not legal because it violated her collective agreement;^{Note de bas page 13}
• Her concerns regarding the safety of the vaccine were never addressed by her employer;^{Note de bas page 14}
• Her employer provided other employees with laptops so they could work from home, but not unvaccinated employees,^{Note de bas page 15} and
• that the Claimant is a sovereign being, not subject to the laws of Canada.^{Note de bas page 16}

[16] The General Division found that it was not within its jurisdiction to decide whether the employer’s policy violated the collective agreement or was mandated by legislation.^{Note de bas page 17} It cited a recent decision from the Federal Court which confirmed that the Tribunal does not have the jurisdiction to make decisions about bodily autonomy or the safety and efficacy of the vaccine.^{Note de bas page 18}

[17] The General Division rejected the Claimant’s arguments that she is not subject to the laws of Canada. It found that it is required to interpret and apply the Employment Insurance Act and would not consider Queen Romana Didulo’s Royal Decrees.^{Note de bas page 19}

[18] The Claimant was granted leave to appeal on the basis that the General Division may have made an error of law by referring to the Claimant being disqualified, rather than disentitled to benefits.

The General Division did not make any errors of law

[19] The General Division did refer to the Claimant as being disqualified from receiving benefits; however the issue was a disentitlement, not a disqualification.

[20] The Commission argues, and I agree, that the General Division properly referred to a disentitlement elsewhere in the decision and recognized that it was a suspension, and not a termination, at issue. I find that the reference to disqualification was a clerical error and not a legal error on the part of the General Division.

[21] The Claimant argues that the General Division failed to consider that government actions have violated the Nuremburg Code. She says that the vaccine is a bioweapon and refers to an incident of a doctor being put to death in Malaysia under the Nuremburg Code. The Claimant says that this set a precedent.^{Note de bas page 20}

[22] The General Division properly recognized that its job is to apply the Employment Insurance Act and determine whether the Claimant’s actions constituted misconduct. It referenced case law in support of its finding that it does not have the jurisdiction to consider questions about the legality or efficacy of the vaccine policy.

[23] The General Division did not make an error of law by failing to consider and apply the Nuremburg Code.

[24] The Claimant also argues that the General Division erred in law by failing to follow Queen Romana Didulo’s Royal Decrees. She also points to the General Division misspelling this individual’s name in its decision.^{Note de bas page 21}

[25] As discussed above, the Claimant properly set out its jurisdiction and what issues it was required to decide. The General Division did not err by not following the decrees that the Claimant argued were applicable. The General Division properly applied the law.

The General Division did not base its decision on any factual errors

[26] The Claimant argues that the General Division failed to consider that she was on sick leave when she was suspended. The Claimant had provided two doctor’s notes, one indicating that she could not work due to illness from December 6 to 17, 2021^{Note de bas page 22} and the other dated December 14, 2021, extending the leave period to January 7, 2022.^{Note de bas page 23}

[27] The General Division did not refer to these notes in its decision. However, it acknowledged that the Claimant had been on a leave of absence before she was suspended.

[28] The General Division had to look at the reasons for the Claimant’s suspension and determine whether there had been misconduct. It was not required to look at the actions of the employer in suspending the Claimant while she was sick. The Federal Court of Appeal has said that it is not the employer’s conduct which is in issue in a misconduct analysis.^{Note de bas page 24}

[29] The General Division accurately set out and applied the key principles established in case law from the Federal Court and the Federal Court of Appeal.^{Note de bas page 25} The courts have said that misconduct is conduct that is willful, which means that the conduct was conscious, deliberate or intentional.^{Note de bas page 26} It also includes conduct that is so reckless that it is almost willful. It is not necessary that a claimant have a wrongful intent.^{Note de bas page 27}

[30] The Courts have also said that there is misconduct when a claimant knew or should have known that the conduct could get in the way of carrying out their duty to their employer and dismissal was a real possibility.^{Note de bas page 28} The question is not whether the suspension or dismissal was justified in a labour law context, but whether the claimant could foresee that they would be suspended or dismissed.^{Note de bas page 29}

[31] A recent decision from the Federal Court, Cecchetto v Canada (Attorney General), considered the issue of misconduct and a claimant’s refusal to follow the employer’s COVID-19 vaccination policy.^{Note de bas page 30}

[32] The claimant in Cecchetto argued that refusing to abide by a vaccine policy unilaterally imposed by an employer is not misconduct and that it was not proven that the vaccine was safe and efficient. The claimant felt discriminated against because of his personal medical choice. He argued that he has the right to control his own bodily integrity and that his rights were violated under Canadian and international law.^{Note de bas page 31}

[33] The Court confirmed that these are not issues that the Tribunal is permitted, by law, to address. It confirmed that the Tribunal cannot consider the conduct of the employer or the validity of the vaccination policy.^{Note de bas page 32} The Court agreed that an employee who made a deliberate decision not to follow’s his employer’s vaccination policy had lost his job due to misconduct.

[34] The General Division explained why it found that the Claimant’s conduct was wilful and why it amounted to misconduct. The General Division cited the definition of misconduct from several Federal Court of Appeal cases. It applied the law to the facts. Its findings were consistent with the law and based on the evidence before it. The General Division did not overlook any relevant evidence.

[35] The Claimant has not identified any reviewable errors by the General Division.

Conclusion

[36] The General Division properly cited and applied the law concerning misconduct. It supported its findings with evidence and explained the reasons for its decision. It did not make any reviewable errors when it determined that the Claimant was suspended because of misconduct.

[37] The appeal is dismissed.