Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Appellant (Claimant) lost his job because of misconduct.

Overview

[2] The Claimant lost his job. He then applied for Employment Insurance (EI) regular benefits. The Respondent (Commission) determined that the Claimant refused to follow the employer’s vaccination Policy (Policy) and was dismissed from his job because of misconduct, so it was not able to pay him benefits. After an unsuccessful reconsideration, the Claimant appealed to the General Division.

[3] The General Division found that the Claimant was dismissed from his job because he did not follow the employer’s Policy. He was not granted a religious exemption. It found that the Claimant knew that the employer was likely to dismiss him in these circumstances. The General Division concluded that the Claimant was dismissed because of misconduct.

[4] The Appeal Division granted the Claimant leave to appeal. The Claimant submits that the General Division failed to resolve an issue that it was obligated to resolve, based its decision on important errors of fact, and made an error of law when it concluded that he was dismissed because of misconduct.

[5] I must decide whether the General Division failed to resolve an issue before it, whether it based its decision on erroneous findings of fact and whether it made an error of law when it concluded that he was dismissed from his job because of misconduct.

Issue

[6] Did the General Division fail to resolve an issue before it, base its decision on erroneous findings of fact, and make an error of law, when it concluded that he was dismissed from his job because of misconduct?

Analysis

Appeal Division’s mandate

[7] The Federal Court of Appeal has determined that when the Appeal Division hears appeals pursuant to Section 58(1) of the Department of Employment and Social Development Act, the mandate of the Appeal Division is conferred to it by Sections 55 to 69 of that Act.^{Footnote 1}

[8] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.^{Footnote 2}

[9] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, I must dismiss the appeal.

Did the General Division fail to resolve an issue before it, base its decision on erroneous findings of fact, and make an error of law, when it concluded that he was dismissed from his job because of misconduct?

[10] The General Division found that the Claimant was dismissed from his job because he did not follow the employer’s Policy. He was not granted a religious exemption. It found that the Claimant knew that the employer was likely to dismiss him in these circumstances. The General Division concluded that the Claimant was dismissed from his job because of misconduct.

[11] The Federal Court has rendered a recent decision in Abdo regarding misconduct and a claimant’s refusal to follow the employer’s COVID-19 vaccination policy because of her religion.^{Footnote 3} The Court responds directly to most, if not all, of the Claimant’s arguments raised before me.^{Footnote 4}

[12] In that case, the claimant was employed as a medical laboratory technician by her employer. Her employer implemented a vaccination policy. The claimant submitted an accommodation request based on her religious beliefs. The employer denied her request to be accommodated under the policy based on her religious beliefs. She was initially placed on unpaid leave and was later terminated with cause.

[13] The General Division dismissed the claimant’s appeal after finding the Commission had demonstrated that she lost her position due to misconduct. The General Division found the claimant had lost her position because she refused to comply with the policy. The Appeal Division later refused the claimant’s application for leave to appeal.

[14] On judicial review, the claimant predominantly argued that the General Division and the Appeal Division had failed to meaningfully grapple with the key issue she raised: that religion is not misconduct.

[15] Amongst other considerations, the claimant asserted that religion is protected, is not reprehensible conduct, and is an immutable characteristic. Accordingly, the claimant claimed that the Appeal Division had made several errors, including approving the General Division findings on the reason for her termination, her belief that all exemption requests would be approved, and that she knew or ought to have known she could be dismissed.

[16] The claimant further stated that the General and Appeal Division had failed to consider whether she had breached a duty to her employer and had failed to decide whether the claimant’s religion could possibly constitute misconduct within the meaning of the Employment Insurance Act (EI Act).

[17] The claimant raised several arguments relating to how the General and Appeal Division disregarded, misapprehended, or misrepresented both crucial facts and the applicable law. Amongst these assertions, the claimant claimed that the General and Appeal Division discounted her testimony and the available record, failed to grapple with the EI Act, did not engage with analogous cases regarding the employer’s conduct, and failed to meaningfully consider the jurisprudence on religion and immutable characteristics.

[18] Moreover, the claimant asserted that the General and Appeal Division had failed to consider legislative intent, or, in the alternative, the constitutionality of Section 30 of the EI Act. The claimant stated the “implication of the SST’s interpretation of Section 30 of the EI Act, being the “misconduct” disqualification section, is that the legislators intended to draft a statute which discriminates against a religious minority based on an immutable characteristic.” The claimant claimed that the General and Appeal Division had failed to consider whether this was, in fact, the legislator’s intention, noting decision-makers are not allowed to “ignore the legislative intent of [their] governing statute(s), as Vavilov instructs.”^{Footnote 5}

[19] Additionally, the claimant argued that the Appeal Division’s position, that a policy’s lawfulness is not relevant to the analysis, is “erroneous, logically and at law.” The claimant contended that the Tribunal has the authority and responsibility to decide questions of law brought by the claimant, which relate to key issues, and regarding legislative intent and legal precedent. The claimant asserted that the General and Appeal Division failed to grapple with whether the claimant owed her employer a duty at law to renounce her religion.

[20] The claimant raised many other issues on judicial review which were based on the employer’s policy or other labour law related issues that the Court considered outside the Tribunal’s jurisdiction.

[21] In support of its decision, the Federal Court followed the Federal Court of Appeal reasoning in Francis, where the claimant had raised a similar set of arguments without success.^{Footnote 6} It reiterated that “there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility”.^{Footnote 7}

[22] The Court found Astolfi was distinguishable because the policy applied to all employees.^{Footnote 8} It found that it was reasonable for the Appeal Division to uphold the General Division’s finding that the claimant knew about the policy, including the consequences of non-compliance, and that her actions amounted to misconduct under the EI framework.

[23] The Court reiterated that arguments concerning whether an employee has been wronged by an employer’s policy are best addressed in another forum.

[24] For these reasons, the Court dismissed the claimant’s application for judicial review.

[25] I am bound by decisions rendered by the federal courts. I don’t see any reason why I shouldn't follow Abdo and Francis in deciding the present appeal.

[26] The General Division had to decide whether the Claimant was dismissed because of misconduct. It is well established that the General Division is not bound by how an employer, or the Commission, characterizes the reasons for the lost of employment. It was up to the General Division to verify and interpret the facts of the present case and make its own assessment on the issue of misconduct.

[27] It was therefore not necessary for the General Division to determine whether the employer had followed its usual discipline procedure. An employer’s discipline procedure is irrelevant to determine misconduct under the EI Act.^{Footnote 9}

[28] It is important that I reiterate that the Digest of benefit Entitlement Principles is an interpretive guide that is not legally binding on the Tribunal. A policy simply reflects the opinion of the administrator who acts under the law. That opinion does not necessarily correspond to the law.^{Footnote 10}

[29] I must specify that the notion of “misconduct” has a specific meaning for EI purposes that does not necessarily correspond to its everyday usage. An employee may be disqualified from receiving EI benefits because of misconduct under the EI Act, but that does not necessarily mean that they have done something “wrong” or “bad.”^{Footnote 11}

[30] The notion of misconduct does not imply that it is necessary that the breach of conduct be the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate, or intentional. In other words, to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects their actions would have on their performance.

[31] The General Division’s role is not to judge the severity of the employer’s penalty or to determine whether the employer was guilty of misconduct by dismissing the Claimant in such a way that his dismissal was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to his dismissal.

[32] The General Division determined that there was misconduct because the Claimant knew there was a mandatory vaccination policy and did not follow the policy or get an exemption for doing so. It determined that the Claimant knew that by not following the Policy, he would not be permitted to be at work. This meant that he could not carry out his duties to his employer. The Claimant was also aware that there was a real possibility that he could be let go for this reason.

[33] The evidence shows that the Claimant submitted a request for a religious-based exempidtion to his employer around November 9, 2021.^{Footnote 12} On December 6, 2021, his Commanding Officer, on behalf of the employer, denied the Claimant’s request for religious or spiritual accommodation.^{Footnote 13}

[34] On December 7, 2021, based upon the Claimant’s representations and expert advice provided to him, his Commanding Officer determined that “the request for accommodation based on religious grounds IAW paragraph 13(d)(5) of ref D is not supportable and is hereby denied.”^{Footnote 14}

[35] In his application to appeal to the General Division, the Claimant puts forward that he strongly disagrees with the employer’s decision to deny him a religious exemption.

[36] The Claimant states: “I had the support of my religious official for religious accommodation, but this was summarily ignored by the military.” He puts forward that he should not have been denied EI benefits since the reasons for his release were not due to his misconduct, but rather due to his employer's inability and/or unwillingness to accommodate his sincere religious beliefs.^{Footnote 15}

[37] Before me, the Claimant argues that he met the conditions mentioned in the Policy created by his employer. He puts forward that he applied for a religious exemption and successfully demonstrated his religious beliefs to his employer.

[38] The Claimant argues that the employer is the one who did not fulfill its commitments under its own Policy by denying him a religious exemption.

[39] The evidence shows that the employer denied the Claimant’s request for a religious exemption. It is not up to this Tribunal to decide whether the employer wrongfully denied his request for a religious exemption. This question is for another forum.

[40] The General Division found that the Claimant knew, after the denial of his religious exemption, that not following the Policy could lead to his dismissal. The Claimant acknowledged that his employer repeatedly told him that this would happen.

[41] The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct.

[42] It is not really in dispute that an employer has an obligation to take all reasonable precautions to protect the health and safety of its employees in their workplace. In the present case, the employer followed the Canada Public Health Measures to implement its Policy to protect the health of all employees during the pandemic. The Policy was in effect when the Claimant was dismissed.

[43] The Claimant was aware of the consequences of non-compliance with the Policy. He had the opportunity to remedy his situation after he was not given an exemption. His decision not to comply with the Policy constituted voluntary misconduct in this context.

[44] I must reiterate that the General Division could not focus on the employment law relationship, the conduct of the employer, and the penalty imposed by the employer. It had to focus on the Claimant’s conduct.

[45] It is one thing to ask whether an express or implied duty exists. It is another to ask whether the duty was validly imposed by the employer. The second question falls outside of EI law.

[46] During the term of employment, the employer may try to impose policies that encroach on their employees’ rights. If they believe that a new policy violates their employment contract or collective agreement, they can sue their employer for wrongful dismissal or file a grievance. If they believe that a new policy violates their bodily integrity or freedom of speech, they can take their employer to court or to a human rights tribunal. However, the EI claims process is not the way to litigate such disputes.

[47] The Federal Court has held that, even if an employee has a legitimate complaint against their employer, “it is not the responsibility of Canadian taxpayers to assume the cost of wrongful conduct by an employer by way of employment insurance benefits.”^{Footnote 16}

[48] The question of whether the employer should have granted the Claimant’s request for an exemption based on his religious beliefs, or whether the employer’s Policy violated his Human Rights and Charter rights, is a matter for another forum. This Tribunal is not the appropriate forum through which the Claimant can obtain the remedy that he is seeking.^{Footnote 17}

[49] The Federal Court has rendered similar decisions regarding vaccination cases: Kuk, Milovac, Matti, and Davidson.^{Footnote 18} These decisions all say that by making a voluntary decision not to follow their employer’s vaccination policy, the claimants had breached their duties owed to their employer and had lost their job because of misconduct under the EI Act. 

[50] The preponderant evidence before the General Division shows that the Claimant, after being denied an exemption, voluntary made the decision not to follow the employer’s Policy and this resulted in him being dismissed from work.

[51] I see no reviewable error made by the General Division when it decided the issue of misconduct solely within the parameters set out by the Federal Court of Appeal, which has defined misconduct under the EI Act.^{Footnote 19}

[52] I am fully aware that the Claimant may seek relief before another forum if a violation of his rights is established. This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant was dismissed because of misconduct.

Other arguments

[53] The Claimant submitted cases from the Federal Court which he says cautions against narrowly applying the legal test for misconduct.^{Footnote 20} He argues that decision-makers must consider an employer’s conduct when deciding whether an EI claimant wilfully broke workplace rules.

[54] However, these cases find no application in the present matter. Here, the employer followed Public Health measures and implemented a policy to protect the health and safety of all its employees in their workplace. There is no suggestion that the employer actively targeted the Claimant. The Policy provided exemptions for religious or medical reasons. The Claimant applied for an exemption; it was not granted to him.

[55] The Claimant argues that he should be granted the benefit of the doubt pursuant to Section 49(2) of the EI Act. However, this section does not apply because the evidence on each side of the issue is not equally balanced.

[56] The evidence clearly shows that:

1. He was aware of his employer’s Policy;
2. After the denial of his request for a religious exemption, he made the decision not to follow the employer’s Policy;
3. He knew the consequences of not following his employer’s Policy.

[57] Finally, the Claimant argues that the General Division decision is not consistent with the instructions provided by the Vavilov decision.

[58] By deciding the matter within its jurisdiction, and by correctly applying case law to the facts of his case, the General Division did not fail to meaningfully grapple with the key issues or central arguments raised by the Claimant. 

[59] I find that the General Division decision is reasonable. It exhibits the requisite degree of justification, intelligibility and transparency required by Vavilov.

Conclusion

[60] The appeal is dismissed.