Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

[2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant lost her job because of misconduct (in other words, because she did something that caused her to lose her job). This means that the Appellant is disqualified from receiving Employment Insurance (EI) benefits.^{Footnote 1}

Overview

[3] The Appellant lost her job. The Appellant’s employer says she went against its vaccination policy: she did not tell the employer she was vaccinated.

[4] The Employer’s policy says you will be treated as having quit and your employment will end if you do not do what the policy says.

[5] The Appellant argues the employer’s policy is illegal. So, she does not have to comply with it. And, she says that going against her employer’s vaccination policy is not misconduct.

[6] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant lost her job because of misconduct. Because of this, the Commission decided that the Appellant is disqualified from receiving EI benefits.

[7] At first, the policy said that employees could ask for a religious exemption from being vaccinated. Then the policy changed. The religious exemption was taken out.

[8] The Appellant has a strong religious belief. She says it is unfair and illegal for the employer to not allow employees to ask for an exemption. So, it was not misconduct for her to decide not to get vaccinated.

Issue

[9] Did the Appellant lose her job because of misconduct?

Analysis

[10] 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 2}

[11] To answer the question of whether the Appellant lost her job because of misconduct, I have to decide two things. First, I have to determine why the Appellant lost her job. Then, I have to determine whether the law considers that reason to be misconduct.

Why did the Appellant lose her job?

[12] I find that the Appellant lost her job because she did not follow her employer’s vaccination policy: she did not tell the employer she had been vaccinated.

[13] The Appellant says she did not violate the policy. The policy is unfair and illegal. And she is entitled to keep her medical information private. So, she did not say if she was vaccinated or not.

[14] The Commission says the policy requires employees to give the employer proof they were vaccinated. And not saying whether you are vaccinated is against the policy. Because you are not providing proof of vaccination.

[15] The policy says employees had to be vaccinated by November 1, 2021. If they were not vaccinated, they would be placed on leave until December 15, 2021. They could get vaccinated before then and come back to work. But if they did not get vaccinated by December 15, 2021, these things would happen:

• The employer would consider that the employee voluntarily quit.
• And their employment would end.

[16] The Appellant did not tell the employer she was vaccinated. So, she was put on leave on November 1, 2021. After that, she still did not tell the employer she got vaccinated. So, her employment ended on December 15, 2021.

[17] I have to determine the real cause of the Appellant’s employment ending. On December 15, 2021, her employment ended. The employer did not have to do anything then to make that happen. Because they had already told her if she was not vaccinated by then her employment would end.

[18] I find that the Appellant lost her job because she did not follow her employer’s policy. She did not tell her employer she was vaccinated.

Issue 1: Is the reason for the Appellant’s dismissal misconduct under the law?

[19] The reason for the Appellant’s dismissal is misconduct under the law.

[20] The Employment Insurance Act (Act) doesn’t say what misconduct means. But case law (decisions from courts and tribunals) shows us how to determine whether the Appellant’s dismissal is misconduct under the Act. It sets out the legal test for misconduct—the questions and criteria to consider when examining the issue of misconduct.

[21] Case law says that to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 3} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 4} 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.^{Footnote 5}

[22] 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 let go because of that.^{Footnote 6}

[23] The Commission has to prove that the Appellant lost her job because of misconduct. The Commission has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that the Appellant lost her job because of misconduct.^{Footnote 7}

[24] I can decide issues under the Act only. I can’t make any decisions about whether the Appellant has other options under other laws. And it isn’t for me to decide whether her employer wrongfully let her go or should have made reasonable arrangements (accommodations) for her.^{Footnote 8} I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act.

[25] In a Federal Court of Appeal (FCA) case called McNamara, the appellant argued that he should get EI benefits because his employer wrongfully let him go.^{Footnote 9} He lost his job because of his employer’s drug testing policy. He argued that he should not have been let go, since the drug test wasn’t justified in the circumstances. He said that there were no reasonable grounds to believe he was unable to work safely because he was using drugs. Also, the results of his last drug test should still have been valid.

[26] In response, the FCA noted that it has always said that, in misconduct cases, the issue is whether the employee’s act or omission is misconduct under the Act, not whether they were wrongfully let go.^{Footnote 10}

[27] The FCA also said that, when interpreting and applying the Act, the focus is clearly on the employee’s behaviour, not the employer’s. It pointed out that employees who have been wrongfully let go have other solutions available to them. Those solutions penalize the employer’s behaviour, rather than having taxpayers pay for the employer’s actions through EI benefits.^{Footnote 11}

[28] In a more recent case called Paradis, the appellant was let go after failing a drug test.^{Footnote 12} He argued that he was wrongfully let go, since the test results showed that he wasn’t impaired at work. He said that the employer should have accommodated him based on its own policies and provincial human rights legislation. The Federal Court relied on McNamara and said that the employer’s behaviour wasn’t relevant when deciding misconduct under the Act.^{Footnote 13}

[29] Similarly, in Mishibinijima, the claimant lost his job because of his alcohol addiction.^{Footnote 14} He argued that his employer had to accommodate him because alcohol addiction is considered a disability. The FCA again said that the focus is on what the employee did or failed to do; it isn’t relevant that the employer didn’t accomodate them.^{Footnote 15}

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

[31] The Commission says that there was misconduct because:

• The employer had a vaccination policy.
• The employer told the Appellant that under the policy all employees had to be vaccinated.
• The employer made it clear to the Appellant what it expected.
• The Appellant did not tell the employer she was vaccinated.
• The Appellant knew or should have known what would happen if she didn’t follow the policy.

[32] The Appellant says that there was no misconduct because the employer’s vaccination policy was unfair and went against the law.

[33] The first version of the policy was dated January 2021. It was changed several times after that. The Appellant filed the September 3, 2021, policy with the Tribunal. That version says employees had to be vaccinated by November 1, 2021. And it says employees could ask for a medical or a religious exemption.

[34] The policy changed before the Appellant was let go. The policy dated October 13, 2021, took away the religious exemption.

[35] On the following dates, the employer told the Appellant about the requirements and the consequences of not following them:

• The employer wrote to the Appellant on October 22, 2021. They explained the policy. The letter said the only exemption is a medical exemption.
• In the last week of October there was a meeting. The Appellant was there. A manager told everyone the policy had changed: the religious exemption was gone.

[36] The Appellant knew about the policy. She knew what she had to do under the vaccination policy and what would happen if she didn’t follow it.

[37] She wanted a religious exemption, so she would not have to get vaccinated. She made a choice not to follow the policy.

[38] She spoke to the union. The union filed a grievance for her. At the Tribunal hearing the Appellant told me the grievance had not yet been decided.

[39] The Appellant says it is illegal for the employer to have a vaccination policy that does not allow for a religious exemption. And the policy goes against the collective agreement because it was not negotiated with the union and because the collective agreement allows religious exemptions for flu vaccines.

[40] The Appellant’s arguments about why the policy is unfair are for another tribunal to decide – an arbitrator or the Human Rights Tribunal, for example. They are not for me to decide. That is because I am deciding whether the Appellant is entitled to EI benefits. I am not deciding the fairness of her employer’s decision.

[41] And even if another tribunal decides that the policy is unfair, it doesn’t mean the Appellant has a right not to be vaccinated.

[42] Another tribunal might say the employer should have allowed the Appellant to ask for a religious exemption. But that is not the same as saying the Appellant would have got a religious exemption. That is because other things would have to happen before the Appellant actually gets a religious exemption. The other tribunal or the employer would have to look at the Appellant’s beliefs and agree that they meet the test for a religious objection.

[43] I find that the Commission has proven that there was misconduct because:

• The policy says employees had to provide proof of vaccination to the employer by November 1, 2021.
• The policy says that if employees were still not vaccinated after their unpaid leave, their employment would end on December 15, 2021.
• The employer explained this to the Appellant. And they told her there was no religious exemption.
• The Appellant knew or should have known the consequence of not following the employer’s vaccination policy.

So, did the Appellant lose her job because of misconduct?

[44] Based on my findings above, I find that the Appellant lost her job because of misconduct.

[45] This is because the Appellant’s actions led to her dismissal. She acted deliberately. She knew that refusing to say whether she had been vaccinated would cause her to lose her job.

Conclusion

[46] The Commission has proven that the Appellant lost her job because of misconduct. Because of this, the Appellant is disqualified from receiving EI benefits.

[47] This means that the appeal is dismissed.