Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant, K. A. (Claimant), is seeking leave to appeal the General Division decision. The General Division dismissed the Claimant’s appeal.

[3] The General Division decided that the Claimant was disqualified from receiving Employment Insurance benefits. This was because it found that the Respondent, the Canada Employment Insurance Commission (Commission), proved that the Claimant was suspended and then lost his job because of misconduct. In other words, it found that he had done something that caused him to be suspended and then lose his job. It found that the Claimant had not fully complied with his employer’s vaccination policy by its deadline.

[4] The Claimant denies that he committed any misconduct. He argues that the General Division member failed to address key issues and that it overlooked some of the evidence. The Claimant has also provided more documents to support his case.^{Footnote 1}

[5] Before the Claimant can move ahead with his 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 2} If the appeal does not have a reasonable chance of success, this ends the matter.^{Footnote 3}

[6] 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 his appeal.

Issues

[7] The issues are as follows:

1. a) Is there an arguable case that the General Division failed to address key issues?
2. b) Is there an arguable case that the General Division overlooked some of the evidence?

I am not giving the Claimant permission to appeal

[8] 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 4} 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 5}

The Claimant does not have an arguable case that the General Division failed to address key issues

[9] The Claimant does not have an arguable case that the General Division failed to address key issues.

[10] The Claimant argues that the General Division should have addressed and made a decision on the following:

1. a. The antedate (backdate) issue. The Claimant wanted his application for Employment Insurance benefits backdated so it was not late.
2. b. His complaint over the handling of his claim by the Commission. He says that the Commission failed to consider all of the evidence.
3. c. His termination, which he considers was wrongful. The Claimant argues that the General Division should have held his employer accountable for its actions.

Antedate issue

[11] The Claimant says that the General Division member should have been able to address the antedate issue because he had raised it in the documents supporting his appeal at the General Division.

[12] However, the General Division did not have any authority or jurisdiction to address the antedate issue or to make a decision on it. As the General Division member explained, her authority came from the reconsideration decision. The reconsideration decision only dealt with the misconduct issue.^{Footnote 6} The reconsideration decision did not deal with the antedate issue.

[13] There is nothing to suggest that the Commission had failed to address the antedate issue in its reconsideration decision. When the Claimant asked the Commission to reconsider its decision, the only issue he identified was the misconduct issue.^{Footnote 7}

[14] The Commission had not dealt with the antedate issue in its reconsideration decision. So, the Claimant was limited to appealing the misconduct issue, and hence, the General Division was limited to addressing and deciding the misconduct issue. As it was, there was no evidence at the General Division that would have enabled it to decide the antedate claim. I am not satisfied that there is an arguable case that the General Division failed to address the antedate issue.

The Claimant’s complaints against the Commission

[15] The Claimant also argues that the General Division member should have addressed his complaint over the handling of his claim by the Commission. He says that the Commission mishandled his claim which led him to be late when he filed his application for benefits.

[16] However, the General Division did not have any authority to address this issue either. Under the Employment Insurance Act, a party may appeal a decision of the Commission to the Social Security Tribunal (this includes both the General Division and the Appeal Division).^{Footnote 8} The Employment Insurance Act does not confer any power on the General Division to review the conduct or behaviour of any employees of the Commission.

[17] I am not satisfied that there is an arguable case that the General Division failed to address the Claimant’s complaints against employees of the Commission. There are other avenues that the Claimant may pursue for any complaints that he may have against any employees.

Wrongful dismissal

[18] The Claimant also says that the General Division should have held his employer accountable for what he considers was a wrongful dismissal.

[19] However, in the context of the Employment Insurance scheme, the issue of a wrongful dismissal is not relevant. The role of the General Division is narrow. The General Division has to focus on whether the act or omission of an employee amounts to misconduct within the meaning of the Employment Insurance Act. The misconduct issue is not concerned with whether an employee was wrongfully dismissed. There are other avenues that employees can pursue for a wrongful dismissal.

[20] As the Federal Court of Appeal set out recently in a case called Sullivan:

Under any plausible reading of the legislation that governs the [Social Security] Tribunal, it is a forum to determine entitlement to social security benefits, not a forum to adjudicate allegations of wrongful dismissal.^{Footnote 9}

[21] I am not satisfied that there is an arguable case that the General Division failed to hold his employer accountable for its actions.

The Claimant does not have an arguable case that the General Division overlooked some of the evidence

[22] 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 in fact the General Division did consider some of that evidence, some of it was irrelevant, or the General Division did not base its decision on that evidence.

[23] 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 10}

[24] The Claimant argues that the General Division overlooked some of the evidence. In particular, he says that the General Division overlooked the following, that:

1. a. He was fully vaccinated before the deadline. He says, “both vaccines and documents were administered before the deadline.”^{Footnote 11} He says that this proves that he had complied with his employer’s vaccination policy. He denies that he committed any misconduct.
2. b. His employer reinstated employees after it had terminated him. He says his employer should have reinstated him early on because he was fully vaccinated. He says his employer violated its own policy. He says the General Division should have contacted and questioned his employer on its reinstatement practices.

The Claimant was fully vaccinated

[25] The General Division was fully aware of and acknowledged that the Claimant had gotten fully vaccinated before the employer’s deadline. However, as the General Division also found, the employer’s vaccination policy also required employees to provide proof of vaccination by December 30, 2021, to avoid termination.

[26] In other words, it was not enough for the Claimant to get vaccinated to be compliant with his employer’s vaccination policy. He also had to verify with his employer that he was vaccinated—by December 30, 2021. His employer confirmed that it had advised him numerous times that he was required to submit proof of having been vaccinated by December 30, 2021, else faced termination as of December 31, 2021.^{Footnote 12}

[27] The Claimant explains that he was out of the country at the time and therefore unable to submit proof of vaccination by the deadline.^{Footnote 13} However, the employer was not flexible about its deadlines. The employer demanded strict compliance, which the General Division noted.^{Footnote 14}

[28] There was no evidence before the General Division that showed the Claimant had given proof of vaccination to his employer before the December 30, 2021 deadline.

[29] I am not satisfied that there is an arguable case that the General Division overlooked the evidence showing that the Claimant was fully vaccinated by December 30, 2021. Timely vaccination was important but so too was disclosing this information to the employer.

The Claimant’s employer reinstated other employees

[30] The Claimant says that his employer treated him differently, as it reinstated other employees before it reinstated him. However, the issue regarding the employer’s reinstatement of other employees was irrelevant to the misconduct issue.

[31] What was relevant was the employer’s policy leading up to the termination, whether the Claimant was aware of the employer’s requirements and the consequences for any non-compliance, and whether the Claimant had knowingly or should have known that he was not meeting his employer’s requirements. As the General Division noted, it did not have the authority to examine the employer’s conduct.

[32] The Claimant has other avenues available to him to pursue any grievances he may have against his employer.

[33] I am not satisfied that there is an arguable case that the General Division overlooked the evidence regarding the employer’s reinstatement of other workers.

Conclusion

[34] 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.