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 was placed on unpaid leave from her job as of April 7, 2022. The Commission said that the Appellant was placed on leave without pay because she went against its vaccination policy: she didn’t get vaccinated.

[4] Even though the Appellant doesn’t dispute that this happened, she says that it isn’t the real reason why the employer let her go. The Appellant says that the employer placed her on administrative leave, and it wasn’t disciplinary. She said she requested an exemption for religious reasons, but her employer refused it. The employer also refused to provide her with accommodation for medical reasons.

[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] 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?

[8] I find that the Appellant was put on unpaid leave (suspended) because she refused to comply with the employer’s Policy on COVID-19 Vaccination for the Core Public Administration.^{Footnote 2} The policy required that employees be fully vaccinated, or they would be placed on unpaid leave until compliance.

[9] The Appellant and the Commission don’t agree on why the Appellant lost her job. The Commission says that the reason the employer gave is the real reason for the dismissal. The employer told the Commission that the Appellant was placed on unpaid leave for non-compliance with the policy.^{Footnote 3}

[10] The Appellant disagrees. The Appellant says that the real reason she lost her job is that it was administrative, not disciplinary.^{Footnote 4} She said that her religious beliefs were the reason she didn’t comply with the policy. She requested accommodation for medical reasons because she was worried the vaccine wasn’t proven. She took her complaints to the union and made two grievances.^{Footnote 5}

[11] I find that the employer had a policy, the policy explained the consequences, and the Appellant didn’t comply. The Appellant tried to have the decision to put her on unpaid leave overturned. The employer refused to reverse its decision because she didn’t qualify for an exemption.

• The employer sent the Appellant a letter dated April 8, 2022, explaining the reasons she was being put on leave without pay.^{Footnote 6}
• The Appellant made a request for a religious exemption, but it was refused by the employer. ^{Footnote 7}
• The Appellant provided a doctor’s note that said she didn’t meet the criteria for a medical exemption. ^{Footnote 8}  
• The Appellant made two grievances: one was related to the unpaid leave; the second one was about the employer’s refusal to accommodate her on the grounds of religious beliefs.^{Footnote 9} But the employer refused to hear the grievances.     

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

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

[13] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 10} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 11} 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 12}

[14] 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 13}

[15] 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 14}

[16] The Commission says that there was misconduct because the Appellant made a personal decision not to get the vaccine as she thought the vaccine was experimental. It didn’t agree that her request for exemption on religious grounds was enough. It said that her religion was a spiritual teaching and only suggested people avoid outside treatment. It said there was nothing specific about not using vaccines.^{Footnote 15} The Commission said the employer had a policy that was clear about requirements to get vaccinated. It said the employer clearly communicated the requirements in enough time to allow employees to comply.

[17] The Appellant says that there was no misconduct because she was put on administrative leave. She said her religious beliefs guided her decision not to get vaccinated. She was worried about her health and the negative effects of an unknown vaccine. She said it shouldn’t be considered misconduct.

[18] I find that the Commission has proven that there was misconduct, because the Appellant made a personal decision not to get vaccinated and wilfully didn’t comply with the policy. Although this was a good decision for her, the reasons for her decision didn’t meet the criteria for exemptions at her workplace. She didn’t qualify for a medical exemption as stated by her own doctor.^{Footnote 16} And her religious beliefs didn’t fall into the criteria required for an exemption.

• At the hearing the Appellant said that she maintained her connection with her religious beliefs mostly through emails that were sent to her monthly. These emails contained information, guidance and spiritual advice. She believed that bringing foreign substances into her body would cause more disease.
• At the hearing the Appellant said she wasn’t against vaccines, some are useful. But the COVID vaccine wasn’t proven.
• She said that she had lived with cancer in 2016. At that time she decided that deep meditation was the best way to manage life to achieve harmony.
• The decision not to comply was a personal one. The Appellant knew there would be consequences and she made an informed decision not to comply.

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

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

Conclusion

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

[21] This means that the appeal is dismissed.