Employment Insurance (EI)

Decision

[1] I am dismissing B. F.’s appeal.

[2] B. F. (the Appellant) didn’t comply with her employer’s mandatory COVID-19 vaccination policy. And her employer dismissed her because of that.

[3] In this appeal, the Canada Employment Insurance Commission (Commission) has proven that she lost her job for a reason the Employment Insurance Act (EI Act) considers misconduct. In other words, she did something that caused her to lose her job.

[4] This means under the EI Act she is disqualified from getting Employment Insurance (EI) benefits.

[5] This is what the Commission decided when she applied for EI benefits.

Overview

[6] The Appellant worked as a charge nurse with Hamilton Health Sciences (employer) until her employer dismissed her.

[7] Her employer said it let her go because she didn’t comply with its mandatory COVID vaccination policy (vaccination policy).

[8] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant lost her job for a reason the EI Act considers to be misconduct. Because of this, the Commission disqualified her from getting EI benefits.

[9] The Appellant says her conduct wasn’t misconduct. The Commission should have used a contextual approach when it decided her EI claim. Her employer was coercing her into getting the COVID vaccination without her informed consent. She was worried that the COVID vaccine might cause cancer. She tried to engage with her employer about this. But her employer didn’t answer her questions about the vaccine’s safety.

[10] I have to decide whether the Appellant lost her job for misconduct under the EI Act.

Matter I have to consider first

Documents sent in after the hearing

[11] The Appellant sent the Tribunal an email after the hearing. It was her response to a point the Commission raised in its supplementary representation.^{Footnote 1} In the email she clarified why she sent in a screen shot of the US Food and Drug Administration’s list of possible adverse events of COVID-19 vaccines, taken from a third-party website.

[12] I am not accepting this email. The email isn’t relevant to a legal issue I can decide in this appeal. When the Tribunal decides COVID vaccination misconduct cases, the Tribunal can’t second-guess the safety and effectiveness of COVID vaccines, or the reasonableness of an employer’s COVID vaccination policy.

[13] So I have not considered this document.

Issue

[14] Did the Appellant lose her job because of misconduct under the EI Act?

Analysis

[15] The law says that you can’t get EI benefits if you lose your job because of misconduct.^{Footnote 2}

[16] I have to decide two things.

• the reason the Appellant lost her job
• whether the EI Act considers that reason to be misconduct

The reason the Appellant lost her job

[17] I find the Appellant’s employer dismissed her because she didn’t comply with its vaccination policy.

[18] Her employer emailed her a notice of termination on December 29, 2021. It says: “Further to the letter issued to you on December 23, 2021, this letter will serve to provide you with notice that should you fail to report your COVID-19 vaccination status by tomorrow December 30, 2021 at 12:00pm your employment with Hamilton Health Sciences will be terminated with cause, effective December 31, 2021.”

[19] Her employer used code M (dismissal or suspension) on her record of employment.^{Footnote 3}

[20] The Appellant was not clear about the reason she was dismissed. In her testimony at the hearing she focussed on two things linked to her dismissal:

• First, at the time her employer dismissed her, she and her employer were involved in a dispute. The dispute was about whether she was fit to return to work from a medical leave. Her employer said she was and had stopped her disability income-replacement payments. Her employer required her to report her vaccination status as a condition of returning to work. The Appellant argues she wasn’t well enough to go back to work.
• Second, the Appellant maintained she had reported her vaccination status to her employer when first asked, in September 2021. (This was before she went off on medical leave and before the deadline to get vaccinated and report in the vaccination policy.) So, she says, her employer was wrong to ask her to report her vaccination status again. She had already done that. So, she didn’t fail to report her vaccination status to her employer.

[21] I accept the Appellant’s testimony. I have no reason to doubt it. She filed evidence of her labour grievances against her employer related to her medical leave and income replacement benefit.^{Footnote 4} This evidence supports what she said about the dispute.

[22] However, I don’t accept her argument that she met her duty to report her vaccination status to her employer. She sees that obligation as a one-off.

[23] But, based on the evidence, I find that she had an ongoing obligation to report her vaccination status. The sentence from the notice of termination I quoted above clearly states she has to report her vaccination status at that time.

[24] In her testimony she admitted she didn’t report at that time. I accept that testimony.

[25] So, based on the evidence I have accepted, I find her employer dismissed her because she didn’t report her COVID vaccination status, which she was required to do under her employer’s vaccination policy.

The reason is misconduct under the law

[26] The Appellant’s failure to comply with her employer’s vaccination policy is misconduct under the EI Act.

What misconduct means under the EI Act

[27] The EI Actdoesn’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 must consider when making my decision.

[28] The Commission has to prove that it is more likely than not she lost her job because of misconduct.^{Footnote 5}

[29] I have to focus on what the Appellant did or didn't do, and whether that conduct amounts to misconduct under the EI Act.^{Footnote 6} I can’t consider whether the employer’s policy is reasonable, or whether suspension and dismissal were reasonable penalties.^{Footnote 7}

[30] The Appellant doesn’t have to have wrongful intent. In other words, she doesn’t have to mean to do something wrong for me to decide her conduct is misconduct.^{Footnote 8} To be misconduct, her conduct has to be wilful, meaning conscious, deliberate, or intentional.^{Footnote 9} And misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 10}

[31] There is 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 let go because of that.^{Footnote 11}

[32] I can only decide whether there was misconduct under the EI Act. I can’t make my decision based on other laws.^{Footnote 12} So, for example, I can’t decide whether the Appellant was wrongfully dismissed under employment law or decide if her employer breached a collective agreement. ^{Footnote 13} I can’t decide whether her employer discriminated against her or should have accommodated her under human rights law.^{Footnote 14} And I can’t decide whether her employer infringed her privacy or other rights in the employment context, or otherwise.

What the Appellant and the Commission say

[33] The Appellant says her conduct isn’t misconduct. She says there was a “break in communication” with her employer. She testified that before she went on medical leave she did everything she thought she should do to engage with her employer about its vaccination policy. She did her research and then asked her employer to give her information about the safety of COVID vaccines. But it never gave her that information.

[34] She also testified she first learned about the vaccination policy in July 2021. But she says things kept changing into the fall of 2021. So the policy was a little ambiguous in her view.

[35] She also testified she kept telling her employer that she had already reported her vaccination when first asked to do so. And she didn’t understand why it kept asking her to report.

[36] The Appellant sent her employer a Notice of Lability, based on a template she found on the internet.^{Footnote 15} When I asked her if she understood she was threatening her employer with legal action by sending it, she said it was “a call for help”.

[37] The Commission says that there was misconduct under the EI Act because the evidence shows:^{Footnote 16}

• her employer adopted a vaccination policy, which it was required to do under a Province of Ontario directive
• the Appellant acknowledged that she received letters and emails from her employer explaining the vaccination policy and the expected timeframes for getting vaccinated and reporting her vaccination status^{Footnote 17}
• because the Appellant was on sick leave, her employer extended the deadline for her to get fully vaccinated and report that (by December 30, 2021)
• she was aware that if she didn’t, her employer could terminate her employment
• she made a wilful and deliberate decision to not follow the vaccination policy, knowing that the only result would be her loss of employment
• her employer dismissed her because she didn’t comply with its vaccination policy

The Commission has proven misconduct under the EI Act

[38] I find that the Commission has proven that the Appellant was dismissed because she didn’t comply with her employer’s COVID vaccination policy, which counts as misconduct under the EI Act.

[39] I don’t accept the Appellant’s argument that her employer’s policy was ambiguous.

[40] I find that the evidence shows that she knew or should have known that, under the vaccination policy, she had a duty to get fully vaccinated and report her vaccination status to her employer.

[41] I further find that she didn’t intend to get vaccinated—she was against COVID vaccination and had serious doubts about the safety and effectiveness of COVID vaccines. She even sent her employer a Notice of Liability threatening legal action. This shows me that she made a wilful and deliberate decision to not comply with her employer’s vaccination policy.

The Appellant’s other arguments

[42] The Federal Court recently decided its first case about misconduct where an employee refused to follow their employer’s mandatory COVID vaccination policy. In Cecchetto the Federal Court confirmed the Tribunal’s narrow legal authority when it decides misconduct cases.^{Footnote 18} It also confirmed the Tribunal isn’t making a legal error when it doesn’t consider an Appellant’s argument that falls outside its narrow legal authority.

[43] Based on Cecchetto, and the court cases I referred to in the legal test for misconduct, I don’t have to consider the Appellant’s arguments based on:

• the safety of COVID vaccines
• Supreme Court of Canada’s decisions about informed consent to medical treatment
• Supreme Court of Canada’s decision about the law of misconduct under employment law, which requires a contextual assessment
• the Canadian Bill of Rights
• the religious exemption documents she sent to the Commission

[44] The Appellant and her union have filed a number of grievances against her employer, including challenging her dismissal. So they might be able to make some of these arguments in those grievances.

[45] I have great empathy for the Appellant’s situation. She was in an ongoing dispute with her employer while she was off on a medical leave due to stress. From her perspective her employer had wrongly terminated her disability income replacement benefit, demoted her, and was forcing her to return to work against her doctor’s recommendation. In the midst of this dispute, her employer was asking her to comply with its vaccination policy as a condition of returning to work.

[46] But she didn’t want to return to work at that time, and she didn’t want to get vaccinated—and she didn’t think her employer had a legal right to make her do either.

[47] Unfortunately for the Appellant, I have to decide her appeal based on the EI legal test for misconduct set out by the Federal Court. And in the circumstances, her refusal to comply with her employer’s vaccination policy amounts to misconduct under the EI Act.

Summary of my finding about misconduct

[48] After considering and weighing the documents and testimony, and applying the law, I find the Commission has shown the Appellant lost her job because of misconduct under the EI Act.

Conclusion

[49] The Commission has proven that the Appellant lost her job because of misconduct under the EI Act.

[50] Because of this, under the EI Act the Appellant is disqualified from receiving EI benefits.

[51] This means the Commission made the correct decision in her EI claim.

[52] So I have to dismiss her appeal.