Employment Insurance (EI)

Decision Information

Summary:

The Claimant worked for the Canada Revenue Agency (employer). In December 2021, her employer put her on administrative leave without pay because she didn’t follow its mandatory COVID-19 vaccination policy. The Canada Employment Insurance Commission (the Commission) accepted the employer’s reason for the suspension and decided that the Claimant was suspended from her job for misconduct. Because of this, the Commission didn’t pay the Claimant Employment Insurance benefits. The Claimant appealed the Commission’s decision to the General Division. She argued, among other things, that her employer unjustly and illegally placed her on an administrative leave without pay.

The General Division found that the Claimant’s employer suspended her because she didn’t comply with its vaccination policy. The Claimant’s failure to comply with her employer’s vaccination policy is misconduct under the Employment Insurance Act. The Claimant argued she didn’t know there was a real possibility her employer would suspend her. She said she complied with her employer’s vaccination policy, and she thought her human rights would be protected. The General Division found that the employer’s vaccination policy was very clear about what she had to do, by when, and the consequences of not doing it. So, even if the General Division accepted that the Claimant didn’t know, it found that she should have known she could be suspended for not complying with the vaccination policy. After considering and weighing the documents and testimony in the appeal, the General Division found that the Commission had shown the Claimant was suspended from her job for misconduct. It also found that the Claimant’s suspension ended on December 24, 2021, which is the date she lost her job because her employment contract came to an end.

As a result, the General Division allowed the appeal in part. It found that because the Claimant’s suspension ended on December 24, 2021, she was entitled to Employment Insurance benefits after that date, as long as she met all other conditions to get benefits under the Employment Insurance Act.

Decision Content

Citation: NB v Canada Employment Insurance Commission, 2023 SST 51

Social Security Tribunal of Canada
General Division – Employment Insurance Section

Decision

Appellant: N. B.
Respondent: Canada Employment Insurance Commission

Decision under appeal: Canada Employment Insurance Commission reconsideration decision (490199) dated June 15, 2022 (issued by Service Canada)

Tribunal member: Glenn Betteridge
Type of hearing: Teleconference
Hearing date: November 23, 2022
Hearing participant: Appellant
Decision date: January 20, 2023
File number: GE-22-2378

On this page

Decision

[1] I am granting N. B.’s appeal, in part.Footnote 1

[2] Her employer suspended her because she didn’t follow its mandatory COVID vaccination policy.

[3] The Canada Employment Insurance Commission (Commission) has proven her employer suspended her for a reason the Employment Insurance Act (EI Act) considers to be misconduct. In other words, because she did something that caused her to be suspended. This means she is disentitled to Employment Insurance (EI) benefits during her suspension. Footnote 2

[4] But her suspension ended on December 24, 2021, the last day of her employment contract.

[5] Under the EI Act, this means that her disentitlement ended on that day. So she is entitled to EI benefits after this date, as long as she meets all other conditions of eligibility.

Overview

[6] The Claimant worked for the Canada Revenue Agency (employer).

[7] In December 2021, her employer put her on administrative leave without pay—which the EI Act calls a suspension.Footnote 3 The employer says it put her on leave because she didn’t follow its mandatory COVID vaccination policy (vaccination policy).

[8] The Commission accepted the employer’s reason for the suspension. It decided that the Claimant was suspended from her job for a reason the EI Act considers to be misconduct. Because of this, the Commission didn’t pay her EI benefits.

[9] The Claimant says her employer unjustly and illegally placed her on an administrative leave without pay. She says the Commission hasn’t proven her conduct is misconduct. She says she didn’t know there was a real possibility she would be suspended. She complied with her employer’s vaccination policy, and she thought her human rights would be protected. Finally, she argues that even if she was suspended for misconduct, her suspension ended when her contract ended. So she should be able to get benefits after that.

[10] I have to decide whether the Claimant got suspended from her job for misconduct under the EI Act. And if she was suspended for misconduct, whether that suspension ended.

Matters I have to consider first

Documents submitted to the Tribunal after the hearing

[11] The Claimant and the Commission submitted documents to the Tribunal after the hearing.

[12] The Claimant referred to her contract of employment during the hearing. I gave her the opportunity to send it in. And she did.Footnote 4

[13] I am accepting this document into evidence for three reasons.

  • she referred to it at the hearing
  • I gave her the chance to send it in
  • it is relevant to a legal issue in this case. One of the legal issues is about the Commission’s decision to disentitle the Claimant beyond the date her contract expired. The terms of her contract might be relevant to my decision on this issue.

[14] The Tribunal sent her employment contract to the Commission and gave it an opportunity to respond. And it did.Footnote 5

[15] I am accepting the Commission’s supplementary representations because I gave the Commission the opportunity to respond.

[16] The Claimant sent the Tribunal another document by email on January 5, 2023. There are two parts to this document.

  • Recent decision of the Tribunal (AL v CEIC).Footnote 6 I will consider it in my reasons (below), for two reasons. First, it was decided and released after I heard the Claimant’s appeal. So she could not have sent it to the Tribunal before her hearing or referred to it at his hearing. Second, the legal issue in that appeal is similar to the Claimant’s appeal. It is an appeal of the Commission’s decision to disqualify a person from getting EI benefits for misconduct for not complying with the employer’s COVID-19 vaccination policy. So the law that the Tribunal member interpreted and applied in AL v CEIC is relevant to the decision I have to make in the Claimant’s appeal.
  • Claimant’s supplementary representations. Aside from a brief section on AL v CEIC, these representations repeat arguments the Claimant already made or could have made prior to the hearing or at the hearing. I will consider her argument about AL v CEIC. I will not consider the other sections of the document because her chance to make those arguments had passed.

The decision the Claimant is appealing

[17] At the beginning of the hearing, the Claimant and I discussed the decision she is appealing. We reviewed the Commission’s decisions in her EI claim.Footnote 7

[18] I also summarized the Commission’s position for the Claimant.Footnote 8 It says it imposed a disentitlement under section 31 of the EI Act.Footnote 9 It says a leave without pay is a suspension under section 31. And because she was suspended due to misconduct, the Commission decided she isn’t entitled to benefits from when her employer placed her on unpaid leave.

[19] The Commission also responded to the Claimant’s argument that she should only be disentitled to EI benefits up until her contract ended—and says again that it suspended the Claimant.Footnote 10

[20] I find that the Commission disentitled the Claimant to EI regular benefits under section 31 of the EI Act. In other words, it treated her case as a suspension for misconduct. I base my finding on the words the Commission used in its decisions letters—"entitled” and the distinction between “regular benefits” and “special benefits”.Footnote 11 I also base my finding on the Commission’s representations, which say the decision the Claimant is appealing is a “disentitlement imposed pursuant to section 31”.Footnote 12

[21] So, the Claimant is appealing the Commission’s disentitlement under section 31 of the EI Act.

[22] I also find the Commission didn’t disqualify her for misconduct under section 30 of the EI Act. It didn’t use the word disqualification in its decision letters or refer to a section 30 disqualification in its representations (GD4). This means I don’t have the legal power to consider whether the Claimant should be disqualified for misconduct (or voluntary leaving without just cause) under section 30 of the EI Act.Footnote 13

Issue

[23] There are two issues in this appeal:

  • Did the Claimant get suspended from her job because of misconduct under section 31 of the EI Act?
  • If she was suspended for misconduct, did her suspension end (and if it did, when)?

Suspension for misconduct

[24] 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.

[25] I have to decide two things:

  • the reason the Claimant was suspended from her job
  • whether the EI Act considers that reason to be misconduct

The reason the Claimant was suspended

[26] I find the Claimant’s employer suspended her because she didn’t comply with its vaccination policy.

[27] The Claimant says in her reconsideration request and her appeal she wasn’t suspended—she was placed on involuntary unpaid leave of absence.

[28] I have to look at the facts through the EI Act. Under the EI Act an involuntary unpaid leave of absence means the same thing as a “suspension”.Footnote 14 Looking at it this way, the Claimant disagrees with the word “suspension”. But she agrees with the underlying facts—her employer told her not to come to work and didn’t pay her when she was not working.

[29] So the Claimant and the Commission agree that her employer suspended her (in the EI Act sense of that word) for not complying with its vaccination policy. That’s what:

  • the Claimant wrote in her EI applicationFootnote 15
  • she told the Commission Footnote 16
  • she wrote in her reconsideration requestFootnote 17
  • she testified to at the hearing
  • her employer wrote on the record of employmentFootnote 18
  • her employer wrote in the suspension letterFootnote 19

[30] I have no reason to doubt the Claimant’s evidence or what her employer wrote in the documents. And there is no evidence that goes against what they said.

The reason is misconduct under the law

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

What misconduct means under the EI Act

[32] 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 issues I have to consider when making my decision.

[33] The Commission has to prove it’s more likely than not she was suspended from her job because of misconduct, and not for another reason.Footnote 20

[34] I have to focus on what the Claimant did or failed to do, and whether that conduct amounts to misconduct under the EI Act.Footnote 21 I can’t consider whether the employer’s policy is reasonable, or whether a suspension was a reasonable penalty.Footnote 22

[35] The Claimant 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 23 To be misconduct, her conduct has to be wilful, meaning conscious, deliberate, or intentional.Footnote 24 And misconduct also includes conduct that is so reckless that it is almost wilful.Footnote 25

[36] There is misconduct if the Claimant 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 26

[37] I can only decide whether there was misconduct under the EI Act. I can’t make my decision based on other laws.Footnote 27 I can’t decide whether a claimant was constructively or wrongfully dismissed under employment law. I can’t interpret a collective agreement or decide whether an employer breached a collective agreement. Footnote 28 I can’t decide whether an employer discriminated against a claimant or should have accommodated them under human rights law.Footnote 29 And I can’t decide whether an employer breached a claimant’s privacy or other rights in the employment context, or otherwise.

What the Commission and the Claimant say

[38] The Commission and the Claimant agree on the key facts in this case. The key facts are the facts the Commission must prove to show the Claimant’s conduct is misconduct under the EI Act.

[39] The Commission says that there was misconduct under the EI Act because the evidence shows:Footnote 30

  • the employer had a vaccination policy and communicated that policy to all staffFootnote 31
  • under the vaccination policy the Claimant had to declare her vaccination status and be fully vaccinated, or get an exemption from her employer (by October 29, 2021)Footnote 32
  • she knew what she had to do under the policyFootnote 33
  • she also knew her employer could suspend her under the policy if she didn’t give proof of vaccination (or get an exemption) by the deadlineFootnote 34
  • she didn’t apply for an exemptionFootnote 35
  • she made a conscious and deliberate personal choice not to be vaccinated by the deadlineFootnote 36
  • so her employer suspended her because she didn’t comply with its vaccination policyFootnote 37

The Commission has proven misconduct under the EI Act

[40] The Claimant says she didn’t know there was a real possibility her employer would suspend her. She says she complied with her employer’s vaccination policy, and she thought her human rights would be protected. Although the Claimant might have believed this, I find the policy is very clear about what she had to do, by when, and the consequences of not doing it. So, even if I accept that she didn’t know, I find she should have known she could be suspended for not complying with the vaccination policy.

[41] Otherwise, the evidence in this appeal is consistent and straightforward. I believe and accept the Claimant’s evidence and the Commission’s evidence for the following reasons.

[42] I have no reason to doubt the Claimant’s evidence (what she said to the Commission, wrote in her reconsideration request and appeal notice, and her testimony at the hearing). Her evidence is consistent. She said the same thing to the Commission and the Tribunal. And her story stayed the same from her first call with the Commission through the hearing.

[43] The Claimant and her employer told the Commission essentially the same thing. And there is no credible and reliable evidence that contradicts what she said.

[44] I accept the Commission’s evidence because it’s consistent with the Claimant’s evidence. And there is no credible and reliable evidence that contradicts it.

[45] Based on the evidence I have accepted, I find that the Commission has proven the Claimant’s conduct was misconduct because it has shown that she:

  • knew about the vaccination policy
  • knew, or should have known (because it was clearly written in the vaccination policy), about her duty to get fully vaccinated and give proof (or get an exemption) by the deadline
  • knew, or should have known (because it was clearly written in the vaccination policy), that her employer could suspend her if she didn’t get vaccinated
  • consciously, deliberately, and intentionally made a personal decision not to get vaccinated and declare her vaccination status to her employer by the deadline
  • was suspended from her job because she didn’t comply with her employer’s vaccination policy

My reasons for not following the Tribunal decisions in AL v CEIC

[46] The Claimant argues I should follow AL v CEIC, a decision of our Tribunal.Footnote 38 In AL v CEIC, AL worked in hospital administration. The hospital suspended and later dismissed her because she didn’t comply with its mandatory COVID-19 vaccination policy. Based on the evidence and argument in that case, the Tribunal member found that AL did not lose her job for a reason the EI Act considers misconduct, for two reasons:

  • First, the collective agreement didn’t include COVID-19 vaccination when it was signed, and the employer had not bargained with the union to include one. The Tribunal member reasoned that the employer could unilaterally impose a new term of employment on an employee only “where legislation demands a specific action by an employer and compliance by an employee.” And he found that there was no such legislation in the case. This meant that the employer’s mandatory vaccination policy was not an express or implied condition of AL’s employment. So AL’s refusal to get vaccinated was not misconduct.
  • Second, AL had a “right to bodily integrity”. It was her right to choose whether to accept medical treatment—in this case, the COVID-19 vaccine. If her choice went against her employer’s policy and led to her dismissal, exercising that right can’t be a wrongful act or undesirable conduct worthy of punishment or disqualification under the EI Act. In other words, her refusal to get vaccinated was legally justified so it can’t be misconduct under the EI Act.

[47] The Commission says the AL v CEIC decision makes no difference in the Claimant’s appeal.Footnote 39 It says there are many other Tribunal decisions that have decided that a claimant’s failure to comply with their employer’s vaccination policy is misconduct under the EI Act. It says the Claimant’s conduct was misconduct.

[48] I don’t have to follow other decisions of our Tribunal. I can rely on them to guide me where I find them persuasive and helpful.Footnote 40

[49] I am not going to follow AL v CEIC. With the respect owed to my colleague who decided AL v CEIC, I am not persuaded by his findings and the reasoning he relied on to arrive at those findings. In my opinion, his decision goes against the legal test the Federal Court has set out in its decisions about misconduct.Footnote 41

[50] Our Tribunal does not have the legal authority (in law we call this “jurisdiction”) to do two things the Member did in his decision:

  • First, he should not have interpreted and applied the collective agreement to find the employer had no authority to mandate that employees get vaccinated against COVID-19.Footnote 42
  • Second, he should not have found that the claimant had a right—in the employment context—to refuse to comply with the employer’s vaccination policy based on the law of informed consent to medical treatment.Footnote 43 In other words, he had no legal authority to add to the collective agreement an absolute right for a worker to choose to ignore the employer’s vaccination policy based on a rule imported from a distinct area of law.

[51] My reasons for not following AL v CEIC flow from our Tribunal’s jurisdiction. My reasons aren’t based on the specific facts of that appeal versus the Claimant’s appeal. So my reasons aren’t limited to the circumstances and arguments the claimant made in AL v CEIC. Footnote 44 As I understand the Federal Court cases, when I am deciding whether a claimant’s conduct is misconduct, I don’t have the legal authority to interpret and apply an employment contract, privacy laws, human rights laws, international law, the Criminal Code, or other laws.

My reasons for not following the Tribunal decisions in GC v CEIC

[52] The Claimant argues I should follow GC v CEIC, a decision of our Tribunal.Footnote 45 It’s also a COVID vaccination misconduct appeal. The member allowed the appeal because the Commission didn’t prove two parts of the legal test for misconduct:

  • The claimant didn’t know and could not have known that failing to disclose his vaccination status could get into the way of his duties to his employer. The member found it was impossible for the claimant to comply with the employer’s policy based on when it came into effect. And the employer could have allowed the claimant to continue working until he was fully vaccinated, rather than dismiss him.Footnote 46
  • The claimant didn’t know and could not have known there was a real possibility of being let go for not complying with the policy. The Tribunal concluded that, based on the policy and his role, he didn’t know and could not have forecast what this employer would do to him.Footnote 47 In other words, the policy didn’t clearly deal with his circumstances, and didn’t clearly say he could be dismissed in his circumstances.

[53] I disagree with the Claimant’s argument about GC v CEIC.

[54] The member’s reasons in GC v CEIC don’t help the Claimant. Her circumstances are different in two relevant and important ways:

  • I found that her employer’s policy is clear.
  • So, I found that she knew or should have known what she had to do and knew or should have known the consequences of not doing it.

[55] This means the legal reasons why the claimant’s conduct was not misconduct in GC v CEIC don’t apply to the Claimant’s conduct in her appeal. In other words, the Tribunal’s decision in GC v CEIC makes no difference to my conclusion that her conduct was misconduct under the EI Act.

The Claimant’s other arguments about misconductFootnote 48

[56] The Claimant says that a number of subsections in section 7 of the Employment Insurance Digest of Benefit Entitlement Principles (Digest) support her argument that her conduct was not misconduct:Footnote 49

[57] I don’t agree, for two reasons:

  • First, the Digest isn’t law, so I don’t have to follow it. The Digest is the Commission’s internal policy. In other words, it’s the Commission’s rule book for staff to use when they decide EI claims. The Digest can’t tell me how to decide cases.
  • Second, I have to follow the EI Act, based on the plain meaning of the Act and what the courts have said about the EI Act. I have applied the legal test for misconduct –based on the court decisions—in this appeal. And I concluded that the Claimant’s conduct was misconduct under the EI Act.

[58] In her appeal notice and at the hearing the Claimant also said her conduct wasn’t misconduct, so the Commission should pay her EI regular benefits, because:

  • her employer’s vaccination policy was illegal and unreasonable
  • she thought her human rights would be protected under the Canadian Human Rights Act and The Canadian Bill of Rights, employment standards law, the Canadian Charter of Rights and Freedoms, the Privacy Act, and the Personal Information Protection and Electronic Documents Act
  • a letter from Justice Centre for Constitutional Freedoms (June 6, 2022)
  • she was “constructively dismissed” under employment law, based on a Law Times article
  • her employer engaged in an unfair labour practice under the Public Sector Labour Relations Act
  • Supreme Court of Canada decision about informed consent to medical treatment
  • A statement from a Public Health Agency of Canada report on immunization
  • the Federal government didn’t invoke the Emergencies Act
  • the UN Declaration of Human Rights

[59] Unfortunately for the Claimant, this doesn’t change the law I have to apply, which clearly tells me I can’t consider these arguments. I can only decide whether her conduct is misconduct under the EI Act. I can’t make my decision based on other laws.Footnote 50

[60] The Claimant might be able to make these arguments in another type of legal case.

[61] Finally, the Claimant argued that the Commission didn’t treat her claim properly or fairly and didn’t follow the Digest.

[62] I can’t accept this argument. My job in a misconduct appeal is to review the decision the Commission made, not the steps it took to arrive at that decision. I don’t have the legal authority to review the Commission’s conduct (acts and omissions). The Federal Court can do that, in an application for judicial review.

Summary of my finding about misconduct

[63] After considering and weighing the documents and testimony in this appeal, I find the Commission has shown the Claimant was suspended from her job for a reason the EI Act considers to be misconduct.

The period of disentitlement: End date

[64] I find that the Claimant’s suspension ended on December 24, 2021, which is the date she lost her job because her employment contract came to an end.

[65] The Claimant says her suspension ended when her contract ended on December 24, 2021.Footnote 51 She say her employer didn’t offer to renew her contract. She argues that her disentitlement to EI regular benefits ended when her contract ended, under section 33(1)(a) and (2) of the EI Act.Footnote 52

[66] The Commission says that the end date in her contract makes no difference. It says the Claimant told it her employer extended the contracts of her colleagues who were vaccinated. She could have had her contract extended if she had complied with the vaccination policy, but she didn’t, and her non-compliance resulted in her loss of employment.

[67] I find that the Claimant’s employment contract was for a fixed term (September 20, 201 to December 31, 2021). And I find her contract in fact ended on December 24, 2021. I have no reason to doubt that the contract she sent to the tribunal is real and legally valid. That contract clearly states that it is for “temporary” employment. It sets out the start and end dates. And says it is definitely not a permanent offer of employment, and she should not in any way plan on permanent employment.

[68] My findings about the contract are supported by her testimony. She says that her employer made her give back all her work “tools,” revoked access to her computer accounts, and did not offer to extend her contract. I have no reason to doubt her testimony about this, and there is no evidence that goes against what she says.

[69] I disagree with the Claimant’s argument that her disentitlement came to an end under section 33 of the EI Act. The Commission didn’t disqualify the Claimant under section 30(1), so section 33 doesn’t apply. Section 33 is an exception to disqualification for voluntary leaving or misconduct under section 30(1).

[70] Above, I found the Commission disentitled the Claimant under section 31 of the EI Act.

[71] Section 31(b) says that a claimant who is suspended due to misconduct isn’t entitled to receive benefits until the claimant loses or voluntarily leaves the employment.

[72] I find that the Claimant’s period of disentitlement came to an end on December 24, 2021 when she lost her job because her contract ended.

[73] Under the EI Act, the Commission can decide a claimant should be disqualified once a disentitlement ends under 31(a) or (b).Footnote 53 It is up to the Commission, not the Tribunal in this appeal, to decide whether, and if so how, to apply sections 30 and 33 to the Claimant.

Conclusion

[74] The Commission has proven that the Claimant was suspended from her job for misconduct under the EI Act.

[75] Because of this, the Claimant is disentitled from receiving EI benefits for the period of her suspension.

[76] But I have found that her suspension ended on December 24, 2021.

[77] This means that she is entitled to EI benefits after this date, as long as she meets all other conditions to get benefits under the EI Act.

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