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 that she was let go because she went against its vaccination policy: she didn’t get vaccinated and didn’t say whether she had been vaccinated.

[4] Even though the Appellant doesn’t dispute that this happened, she says that going against her employer’s vaccination policy isn’t misconduct.

[5] 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.

Issue

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

Analysis

[7] 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}

[8] 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?

[9] I find that the Appellant lost her job because she went against her employer’s vaccination policy.

[10] The parties agree that the Appellant was dismissed from her job because she wasn’t vaccinated. I see no evidence to the contrary, so I accept this as fact.

What is misconduct under the law?

[1] To be misconduct under the law, the conduct must be wilful. This means that the conduct was either conscious, deliberate, or intentional.^{Footnote 3} Misconduct can also exist if the behaviour was so reckless that it is almost wilful.^{Footnote 4} This means that even if there isn’t wrongful intent (in other words, you don’t mean to do something wrong) behaviour can still be misconduct under the law.^{Footnote 5}

[2] To be considered misconduct, the law requires that the Appellant knew, or should have known, that there was a real possibility of losing her job because of her conduct, or that it could prevent her from fulfilling her duties toward her employer.^{Footnote 6}

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

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

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

[12] 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.

[13] I only have the power to decide questions under the Act. I can’t make any decisions about whether the Appellant has other options under other laws. Issues about whether the Appellant was wrongfully dismissed or whether the employer should have made reasonable arrangements (accommodations) for the Appellant aren’t for me to decide.^{Footnote 8} I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act.

[14] There is a case from the Federal Court of Appeal (FCA) called Canada (Attorney General) v McNamara.^{Footnote 9} Mr. McNamara was dismissed from his job under his employer’s drug testing policy. He argued that he should not have been dismissed because the drug test was not justified under the circumstances, which included that there were no reasonable grounds to believe he was unable to work in a safe manner because of the use of drugs, and he should have been covered under the last test he’d taken. Basically, Mr. McNamara argued that he should get EI benefits because his employer’s actions surrounding his dismissal were not right.

[15] In response to Mr. McNamara’s arguments, the FCA stated that it has constantly said that the question in misconduct cases is “not to determine whether the dismissal of an employee was wrongful or not, but rather to decide whether the act or omission of the employee amounted to misconduct within the meaning of the Act.” The Court went on to note that the focus when interpreting and applying the Act is “clearly not on the behaviour of the employer, but rather on the behaviour of the employee.”  It pointed out that there are other remedies available to employees who have been wrongfully dismissed, “remedies which sanction the behaviour of an employer other than transferring the costs of that behaviour to the Canadian taxpayers” through EI benefits.

[16] A more recent decision that follows the McNamara case is Paradis v Canada (Attorney General).^{Footnote 10} Like Mr. McNamara, Mr. Paradis was dismissed after failing a drug test. Mr. Paradis argued that he was wrongfully dismissed, the test results showed that he was not impaired at work, and the employer should have accommodated him in accordance with its own policies and provincial human rights legislation. The Federal Court relied on the McNamara case and said that the conduct of the employer is not a relevant consideration when deciding misconduct under the Act.^{Footnote 11}

[17] Another similar case from the FCA is Mishibinijima v Canada (Attorney General).^{Footnote 12}  Mr. Mishibinijima lost his job for reasons related to an alcohol dependence. He argued that, because alcohol dependence has been recognized as a disability, his employer was obligated to provide an accommodation. The Court again said that the focus is on what the employee did or did not do, and the fact that the employer did not accommodate its employee is not a relevant consideration.^{Footnote 13}

[18] These cases are not about COVID vaccination policies. But, the principles in those cases are still relevant. My role is not to look at the employer’s conduct or policies and determine whether they were right in dismissing the Appellant. Instead, I have to focus on what the Appellant did or did not do and whether that amounts to misconduct under the Act.

[19] The Appellant has submitted an SST decision that allowed a similar misconduct appeal because the member found that an employer cannot unilaterally change conditions for employment where an employment agreement exists. This decision is currently under appeal. I don’t agree with the member’s determination because I think he exceeded his jurisdiction. The Courts have been clear: it is an error of law for the Tribunal to determine if the employer’s policies are just, if an employment agreement has been violated, or if dismissal is warranted. The Tribunal is only to decide if the claimant committed misconduct under the Act without regard to the employer’s conduct.

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

• The employer had a vaccination policy.
• The employer clearly notified the Appellant about its expectations about getting vaccinated and disclosing her vaccination status.
• The employer sent emails and letters to the Appellant several times to communicate what it expected.
• The Appellant knew or should have known what would happen if she didn’t follow the policy.

[21] The Appellant says that there was no misconduct because:

• There was a miscommunication with the employer, so the Appellant thought she was compliant while on sick leave.
• The Appellant didn’t think the vaccination policy applied to her while she was on sick leave.
• The Appellant wasn’t able to mentally process her situation because of her injuries and medication, so she didn’t intentionally violate the policy.

[22] The employer’s vaccination policy says that “Effective October 31, 2021, all X staff, professional staff, volunteers including Board members, students and contractors will be required to be fully vaccinated. This means that the first dose of a two dose series must be received by September 18, 2021, with a subsequent dose no later than October 17, 2021 in order to be deemed fully vaccinated by October 31, 2021. Staff that are not fully vaccinated nor have provided a valid exemption by October 31, 2021, will have their employment terminated; or for professional staff; their privileges suspended on an immediate mid-term basis.” This change in policy was communicated to all staff in a memorandum on September 10, 2021.^{Footnote 14}

[23] The Appellant knew what she had to do under the vaccination policy and what would happen if she didn’t follow it. On the following dates, the employer told the Appellant about the requirements and the consequences of not following them:

• August 19, 2021
• August 25, 2021
• September 9, 2021
• September 10, 2021
• September 27, 2021
• October 8, 2021

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

• The employer had a vaccination policy that said that all staff must have their first vaccination dose by September 18, 2021, or have an exemption filed.
• The employer clearly told the Appellant about what it expected of its employees in terms of getting vaccinated and disclosing their vaccination status.
• The employer sent memorandums, emails, and letters to the Appellant several times to communicate what it expected.
• The Appellant knew or should have known the consequences of not following the employer’s vaccination policy.

[25] The Appellant testified that she was significantly hurt in a serious fall on September 18, and was unable to work due to pain, mobility, and medications. She argues that since she was off work for her injuries, she didn’t think the policy applied to her. She also submits that her pain levels and medication significantly impacted her ability to think, and that is why she filled out the second declaration the way she did (writing “I sign under duress for” and not finishing why). However, she also testified that she had no intentions of getting vaccinated at that point because she was concerned about her personal safety.

[26] The Appellant says that she has a heart condition that her doctor was willing to write a medical exemption for. However, she didn’t talk to her doctor about this until September 21, 2021. She also never selected the option for declining vaccination due to a medical condition on either of her vaccination declarations, and didn’t bring this up with her employer during her termination process.

[27] The employer clearly indicated that the Appellant needed to submit an exemption or receive at least one dose of the vaccine by September 18, 2021, otherwise she would be terminated.

[28] I accept that the Appellant may not have been able to think clearly or understand what was happening when she filled out paperwork on September 21 for her sick leave. So, at that time, her conduct may not have been intentional. But, this was after she was required to either receive her first dose of a recognized vaccine, or submit a medical exemption.

[29] I find, on the balance of probabilities, that the Appellant had no intention of getting vaccinated or obtaining a medical exemption before her employer’s deadline of September 18, 2021.

[30] So, the Appellant deliberately violated her employer’s vaccination policy.

[1] The Appellant testified that she didn’t intentionally violate the vaccination policy because she didn’t know there were changes that would come into effect while she was on sick leave. She said that she never checked her email while at work because there wasn’t time. The hospital was over capacity and all the staff were overwhelmed. She said she used her breaks to sit in her car and cry. She also said she couldn’t log into her work account from home because her internet connection was insufficient.

[2] The Appellant testified that during the pandemic, bulletin boards weren’t allowed, so memos and news that would normally have been posted in break rooms and hallways were no longer displayed. She said that her satellite hospital learned things well after the main campus, and the night shift didn’t get a lot of information because there weren’t managers on duty to talk to staff. She also said that she didn’t listen to the news or radio because she was worried it would trigger her husband’s anxiety and her scare her children.

[3] I don’t accept this argument. While the Appellant may very well have not been informed that a new provincial health directive was coming into effect, and that her hospital was adopting the requirement for all staff to have their first vaccination by September 18 or face termination, the reason she didn’t know was because she failed to keep herself reasonably informed while at work. I understand that she was overwhelmed and exhausted, but that doesn’t remove her duty to her employer and her coworkers to check her work email on a regular basis. The Appellant’s coworkers knew the policy was coming into effect, and they were working in similar conditions. So, the Appellant behaved so recklessly as to be considered wilful.

[4] I find, on the balance of probabilities that the Appellant ought to have known that not getting vaccinated could have led to her dismissal.

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

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

[32] This is because the Appellant’s actions led to her dismissal. She acted recklessly. She should have known that refusing to get vaccinated was likely to cause her to lose her job.

Conclusion

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

[34] This means that the appeal is dismissed.