Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] The Applicant, T. P. (Claimant), is seeking leave to appeal the General Division decision of August 14, 2023, The General Division dismissed the Claimant’s appeal.

[3] The General Division found that the Respondent, the Canada Employment Insurance Commission (Commission), proved that the Claimant was suspended from her job because of misconduct. In other words, it found that she had done something that caused her to be suspended. It found that the Claimant had not complied with her employer’s vaccination policy.

[4] As a result of the misconduct, the Claimant was disentitled from receiving Employment Insurance benefits.

[5] The Claimant denies that she committed any misconduct. She says that she had complied with her employer’s vaccination policy. She argues that the General Division member made procedural, jurisdictional, legal, and factual errors.

[6] Before the Claimant can move ahead with her appeal, I have to decide whether the appeal has a reasonable chance of success. In other words, there has to be an arguable case.^{Footnote 1} If the appeal does not have a reasonable chance of success, this ends the matter.^{Footnote 2}

[7] I am not satisfied that the appeal has a reasonable chance of success. Therefore, I am not giving permission to the Claimant to move ahead with her appeal.

Issues

[8] The issues are as follows:

1. a) Is there an arguable case that the General Division process was unfair?
2. b) Is there an arguable case that the General Division misinterpreted what misconduct means?
3. c) Is there an arguable case that the General Division made important factual errors?

I am not giving the Claimant permission to appeal

[9] Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success. A reasonable chance of success exists if the General Division may have made a jurisdictional, procedural, legal, or a certain type of factual error.^{Footnote 3} For these types of factual errors, the General Division had to have based its decision on an error that it made in a perverse or capricious manner, or without regard for the evidence before it.^{Footnote 4}

The Claimant does not have an arguable case that the General Division process was unfair

[10] The Claimant does not have an arguable case that the General Division process was unfair. The Claimant argues that the General Division process was unfair because the member overlooked important facts. Apart from that, she does not identify anything unfair about the actual process itself, such as whether she might have failed to receive full disclosure of documents or failed to get adequate notice of a hearing. She also does not say that she did not know the case that she had to meet, or that she did not somehow get a fair chance to present her case.

[11] As far as I can determine, the Claimant received all of the file materials. She received adequate notice of the hearing. The Commission fully set out its position in its representations, so she should have known the case she had to meet. There is no indication either that the General Division did not give the Claimant a fair hearing or a reasonable chance to present her case. I am not satisfied that there is an arguable case that the General Division process was unfair.

[12] The Claimant says that the General Division acted unfairly by overlooking some of the evidence. Those are not typically procedural matters. I will address those arguments under the heading of error of fact.

The Claimant does not have an arguable case that the General Division misinterpreted what misconduct means

[13] The Claimant does not have an arguable case that the General Division misinterpreted what misconduct means for the purposes of the Employment Insurance Act.

Misconduct does not require wrongdoing

[14] The Claimant denies that she committed any misconduct. She argues that the General Division misinterpreted what misconduct means.

[15] The Claimant says that misconduct involves serious wrongdoing, whether intentional or not. She denies that she did anything wrong. The Claimant says that she simply refused vaccination. She says refusing vaccination does not constitute serious wrongdoing or doing anything illegal. The Claimant relies on the Metropolitan Hotel^{Footnote 5}and Arthurs^{Footnote 6}decisions to support her arguments.

[16] However, neither case deals with the issue of misconduct under the Employment Insurance Act. So, they are not relevant to the misconduct question.

[17] The courts have defined what misconduct means for the purposes of the Employment Insurance Act. The courts have not required that there be an element of wrongdoing. In a case called Tucker,^{Footnote 7} the Federal Court of Appeal examined misconduct under the Employment Insurance Act. The Court determined that misconduct involves an element of wilfulness.

[18] The General Division defined misconduct as follows:

Case law says that, to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional. [Citation omitted] Misconduct also includes conduct that is so reckless that it is almost wilful. [Citation omitted] The Appellant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law. [Citation omitted]

There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go or suspended because of that. [Citation omitted]^{Footnote 8}

[19] The General Division adopted the definition of misconduct from several Federal Court of Appeal decisions. The General Division’s interpretation of misconduct under the Employment Insurance Act is consistent not only with these decisions, but also with Tucker.

[20] The General Division did not misinterpret what misconduct means. It accepted that an employee’s conduct has to be wilful. There does not have to be any wrongdoing involved.

[21] I am not satisfied that there is an arguable case that the General Division misinterpreted what misconduct means when it did not require wrongdoing.

Misconduct arises when an employee’s conduct interferes with the performance of their duties

[22] The Claimant says that the main cases that support her arguments are Meunier^{Footnote 9}and R.G.^{Footnote 10}She says these cases show that misconduct only arises when an employee’s conduct interferes with the performance of their duties. She says the General Division did not examine whether her conduct interfered with her work performance.

[23] The Claimant says that the General Division had to follow Meunier, as she says it has more precedential value than Paradis, a case that the General Division relied on.

[24] In Meunier, the Federal Court of Appeal said that it was insufficient to rely on the fact that criminal charges had been and to rely on an employer’s speculation. The Commission in that case had not discharged its duty of proving the applicant’s misconduct. It had not verified the nature and validity of the preliminary information on which the employer stated that it had replied.

[25] The Claimant quotes from R.G., and argues that to prove misconduct:

… it must be shown that the claimant behaved in a way other than they should have and that the claimant did so wilfully, deliberately, or so recklessly as to approach wilfulness: Eden A-402- For an act to be characterized as misconduct, it must be demonstrated that the claimant knew or ought to have known that their conduct was such as to impair the performance of the duties owed to the employer and that, as a result, dismissal was a real possibility: Lassonde, A-213-09, Mishibinijima A-85-06, Hastings A-592-06, Lock 2003 FCA 262; and that the conduct will affect the claimant’s job performance, or will be detrimental to the interests of the employer or will harm, irreparably, the employer-employee relationship: CUB 73528.^{Footnote 11}

[26] The General Division applied the principles set out by the Court of Appeal in Meunier.

[27] The Claimant’s employer did not pursue any disciplinary measures against the Claimant before it placed her on a leave of absence. The Claimant says that if she had not performed her job duties, her employer would have arranged a disciplinary meeting with her union, and would have placed a citation against her name. The terms of her collective agreement required this.

[28] The Claimant’s employer did not take any disciplinary measures or issue any citations against the Claimant. So, she denies that she committed any misconduct and says the General Division misinterpreted what misconduct means.

[29] However, the employer’s vaccination policy stated that non-vaccinated employees and those who did not qualify for an accommodation were “considered unavailable to fulfil their duties.”^{Footnote 12} These same employees also were prohibited from entering any of the employer’s workplaces.

[30] From the employer’s viewpoint, the Claimant did not qualify for an accommodation and she was unvaccinated. So, it considered her unavailable to fulfill her duties. This made sense that she could not fulfill her duties if she was not allowed to enter any of the employer’s workplaces. This meant that the Claimant fell directly into the very definition of misconduct that she sets out.

[31] The fact that the employer had not taken any disciplinary measures before placing the Claimant on a leave of absence was not determinative of whether misconduct arose. As the Federal Court of Appeal has held, one must determine the real cause of a claimant’s separation from their employment.^{Footnote 13} This means that one cannot solely rely on the employer’s characterization as to what happened.

[32] This necessarily involves examining all of the evidence surrounding a claimant’s separation. That way, one can properly characterize what happened. The General Division examined the facts surrounding the Claimant’s separation from her employment, as it was required to do. The General Division examined the vaccination policy and determined that the Claimant had neither received an exemption nor complied with the policy, despite knowing that there could be consequences for non-compliance.

[33] As for the General Division’s definition of misconduct, it is consistent and in line with the definition that the Claimant has reproduced from R.G.^{Footnote 14}

[34] I am not satisfied that the appeal has a reasonable chance of success that the General Division misinterpreted the definition of misconduct. Its definition is consistent with the law and the General Division clearly considered whether the Claimant met her employment obligations as set out by the employer’s vaccination policy.

Misconduct can arise even if an employer does not accommodate an employee

[35] The General Division did not have to consider whether the Claimant`s employer could have accommodated the Claimant.

[36] The Claimant’s argues that she did not commit misconduct because her employer failed to grant her an exemption. However, as the Federal Court of Appeal has determined, the issue of an employer’s duty to accommodate is irrelevant to deciding misconduct under the Employment Insurance Act.^{Footnote 15}

The Claimant does not have an arguable case that the General Division made important factual errors

[37] The Claimant does not have an arguable case that the General Division made important factual errors. The Claimant says that the General Division overlooked some of the evidence, but some of it was irrelevant, and some of it does not support what the Claimant says it does, or the General Division did not base its decision on that evidence.

[38] Besides, a decision-maker is not required to refer to all of the evidence before it, unless it is of such significance that it could affect the outcome. A decision-maker is presumed to have considered all of the evidence. As the Federal Court has held, a decision-maker expresses only the most important factual findings and justifications for them.^{Footnote 16}

There is no arguable case that the General Division made an error about whether the Claimant was compliant with her employer’s vaccination policy

[39] The Claimant argues that the General Division misapprehended the evidence. She says that if it had not misapprehended the evidence, it would have accepted that she had in fact complied with her employer’s vaccination policy.

[40] The General Division found that the employer’s vaccination policy required the Claimant to get fully vaccinated. The General Division found that the Claimant had not gotten fully vaccinated and therefore had not complied with the policy.

[41] The Claimant says the vaccination policy did not require her to get fully vaccinated. She says that she was compliant as long as she asked for an exemption from the policy. She had asked her employer for a religious accommodation.

[42] The General Division acknowledged the Claimant’s arguments that she was compliant because she had sought an exemption. But the General Division determined that unless the employer actually granted an exemption, this still meant that the Claimant was non-compliant. This was because the employer otherwise required employees to confirm that they had received a first dose by September 8, 2021, and then confirm that they were fully vaccinated by October 31, 2021.^{Footnote 17}

[43] As the employer explained in its policy, it considered employees to be non-compliant if they did not meet these requirements, “unless they qualify[ied] for an accommodation exception…”^{Footnote 18}

[44] To determine whether an employee was compliant, regard must be given to the whole of the policy, not just selective portions of it. This includes the sections under the headings “Requirements,” “Exceptions,” and “Non-Compliance with this Policy.” Under the latter heading, the policy reads:

As of October 31, 2021 (and any other applicable date in the circumstances described above or unless they qualify for an accommodation exception to this policy, as described above,), employees who (a) are not fully vaccinated, (b) have not recorded their status via our Vaccination Status Reporting Tool and (c) have not uploaded proof of vaccination will be:

1. (i) considered non-vaccinated …
2. (ii) prohibited from entering any … workplace;
3. (iii) considered unavailable to fulfill their duties; …
4. (iv) placed on unpaid leave without benefits for six months …^{Footnote 19}

[45] This reinforced the General Division’s finding that it was insufficient to seek an accommodation. The Claimant would have had to qualify for an exception to avoid the consequences of non-compliance with the employer’s policy.

[46] According to her employer, the Claimant did not meet either the requirements or any of the exemptions. She did not get fully vaccinated and it had not granted her an accommodation.

[47] It was insufficient for the Claimant to simply ask for an accommodation. The employer still had to grant her an exemption if she were to avoid being non-compliant with the employer’s policy.

[48] I am not satisfied that the appeal has a reasonable chance of success on this point.

There is no arguable case that the General Division overlooked the fact that the Claimant’s employer’s vaccination policy provided for exceptions

[49] The Claimant argues that the General Division overlooked the fact that her employer’s vaccination policy provided for multiple type of exemptions, including religious and medical accommodations.

[50] The General Division was not required to refer to all of the evidence before it unless it was material to the outcome. The fact that the employer’s vaccination policy provided for different types of accommodations had no bearing on the outcome. What was important was whether the Claimant’s employer had provided her with an accommodation under its policy to allow her to avoid being non-compliant and to the consequences that came with non-compliance.

[51] I am not satisfied that the appeal has a reasonable chance of success on this point.

There is no arguable case that the General Division based its decision on when the Claimant submitted her exemption request

[52] The Claimant says the General Division made a mistake about when she asked her employer for an exemption. The General Division found that she had submitted her request on October 31, 2021. She says this is an error, as she says that she submitted her request on October 30, 2021.

[53] As I noted above, there has to be an arguable case that the General Division made a certain type of factual error. That type of error has to be one on which the General Division based its decision, that it made in a perverse or capricious manner, or without regard for the evidence before it.

[54] The General Division referred to October 31, 2021. But that does not necessarily mean that it relied upon this finding to make its decision. There is nothing in the evidence to suggest that the General Division found that the Claimant was non-compliant because she had not submitted her exemption request before October 31, 2021. Indeed, the vaccination policy does not suggest that an employee would have been compliant with the policy if they had submitted an exemption request before October 31, 2021. The Claimant had to have qualified for an accommodation to avoid non-compliance.

[55] In other words, it would not have changed the General Division’s decision, even if it had found that the Claimant had submitted an accommodation request on October 30, 2021.

[56] I am not satisfied that the appeal has a reasonable chance of success on this point.

There is no arguable case that the General Division made an error about whether the Claimant should have been aware of her employer’s policy requirements and consequences for non-compliance

[57] The Claimant says that the General Division made a factual error or made a false assumption when it found that she knew she faced suspension or a leave of absence for non-compliance with her employer’s policy. She does not deny that she was aware of the policy. But she denies that she could have anticipated that her employer would reject her accommodation request. So, she says that she could not have been aware that her employer would place her on a leave of absence.

[58] The Claimant expected that her employer would grant her an accommodation. But, her employer indicated that applicants needed to either become fully vaccinated or qualify for an accommodation to avoid the consequences of non-compliance. The employer clearly set out the consequences for those who were non-compliant or did not qualify for an accommodation. The employer set out these consequences under the heading, “Non-Compliance with this Policy.”^{Footnote 20} The evidence supports the General Division’s findings. I am not satisfied that the appeal has a reasonable chance of success on this point.

[59] This is not to say that the Claimant is without options. There are other avenues outside the Employment Insurance setting that the Claimant can pursue for what she sees as her employer’s failure to accommodate her.

Conclusion

[60] The appeal does not have a reasonable chance of success. Permission to appeal is refused. This means that the appeal will not be going ahead.