Employment Insurance (EI)

Decision

[1] An extension of time to apply to the Appeal Division is refused. The application will not proceed.

Overview

[2] The Applicant, D. S. (Claimant), is asking for an extension of time to file an application for leave (permission) to appeal the General Division decision.

[3] The General Division found that the Claimant had proven that the Claimant lost his job because of misconduct. In other words, It found that he did something that caused him to lose his job. His employer did not have a vaccination policy, but as the Claimant did not get vaccinated, he was unable to fly to a job site. The General Division found that he could not carry out the duties that he owed to his employer. As a result of the misconduct, the Claimant was disqualified from receiving Employment Insurance benefits.

[4] The Claimant denies that he committed any misconduct or, for that matter, that he was even dismissed or that he voluntarily left his job. He says that the evidence clearly shows that his employer laid him off from his employment. He says the General Division overlooked this evidence.

[5] When considering whether to grant an extension of time, I have to be satisfied that there is a reasonable explanation for the Claimant’s delay when he filed his application to the Appeal Division. Otherwise, this ends the appeal.

[6] If I grant an extension of time, I still have to consider 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 also ends the matter.^{Footnote 2}

[7] I am not satisfied that the Claimant has a reasonable explanation for his delay. But, even if he had a reasonable explanation and I were to grant an extension of time, I would not have been satisfied that the appeal had a reasonable chance of success. I would not have given him permission to move ahead with his appeal.

Issues

[8] The issues in this appeal are:

1. a) Was the application to the Appeal Division late?
2. b) If so, should I extend the time for filing the application?
3. c) If I grant an extension of time, is there an arguable case that the General Division overlooked any evidence?

Analysis

The application was late

[9] There is a 30-day deadline by which an applicant has to file an application for leave to appeal with the Appeal Division.^{Footnote 3}

[10] The Claimant acknowledges that he was late. He does not say when he got the General Division’s decision. But I see that the Social Security Tribunal (Tribunal) emailed a copy of the General Division decision on June 28, 2023.^{Footnote 4} So, he should have filed an application with the Appeal Division no later than July 29, 2023.

[11] The Claimant filed his application with the Appeal Division on November 9, 2023. He was about three months late.

[12] Because the Claimant did not file his application on time, he has to get an extension of time. If the Appeal Division does not grant an extension of time, this means that the Appeal Division would not be considering the Claimant’s application for leave to appeal. This would also end the Claimant’s appeal of the General Division decision.

I am not extending the time for filing the application

[13] The Appeal Division may grant an extension to file if an application is late by not more than one year. The Appeal Division gives more time to appeal if an appellant has a reasonable explanation for why they are late.^{Footnote 5}

[14] The Claimant explains that he was late “as [he has] been lied to every time [he] speak[s] with EI.”

[15] I do not accept that this reasonably explains the Claimant’s delay. When the Tribunal sent a copy of the General Division decision to the Claimant, the covering letter advised him that if he disagreed with the General Division decision, he could appeal the decision.

[16] The Tribunal explained that he would have to complete an Application to the Appeal Division and that he had 30 days from the date he received the Tribunal’s letter to submit his form. The Tribunal highlighted how much time he had to file.

[17] The Tribunal gave the Claimant the information he needed to file an application with the Appeal Division. So, it is insufficient for him to suggest that the Respondent, the Canada Employment Insurance Commission (Commission), misled him or gave him inaccurate information about how to pursue an appeal with the Appeal Division.

[18] So, I am not extending the time for filing the application.

The Claimant does not have an arguable case

[19] Even if I had granted an extension of time, I would not have been satisfied that the appeal has a reasonable chance of success.

[20] The Claimant argues that the General Division overlooked important information. In particular, he says that the General Division overlooked evidence that shows that he was laid off from his employment. He says this evidence proves that his employer did not dismiss him for misconduct.

[21] The evidence consists of the following:

• Employer’s email dated October 6, 2021 which reads in part, “if you are not vaccinated, in order to remain working on this project you will have to get vaccinated. If you choose to not get vaccinated, we unfortunately cannot continue our relationship and you will be laid off as we cannot get you to the site.”^{Footnote 6}
• Claimant’s application for Employment Insurance benefits dated November 23, 2021—the Claimant stated that he was no longer working because he was on a leave of absence.^{Footnote 7}
• Record of Employment dated January 28, 2022—the Claimant’s employer wrote that the Claimant had quit.^{Footnote 8}
• Record of Employment dated August 7, 2022—the Claimant’s employer wrote that the reason for separation was “Other.” The employer also wrote that the Claimant left his employment because he was no longer allowed to fly due to the vaccine mandate.^{Footnote 9}
• The Claimant spoke with the Commission on June 14, 2022, stating that he had a letter from his employer confirming that he had been laid off.^{Footnote 10} (He later clarified that it was in fact an email.)
• The Claimant’s employer spoke with the Commission on August 10, 2022, confirming that there was no shortage of work. The employer also stated that the Claimant had initiated the separation by refusing the vaccination. So, the employer changed the reason for separation to “quit.”^{Footnote 11}
• The Claimant maintained that his employer laid him off. He stated that this was according to an email he had received.^{Footnote 12}
• The employer confirmed that it had written to the Claimant on October 6, 2021, advising him that he would be laid off. The employer stated that that had been a mistake. “It was actually a quit as there was work for him.”^{Footnote 13}

[22] The Claimant maintains that his employer laid him off from his employment. The Claimant relies on the employer’s initial email of October 6, 2021. The email stated that if he did not get vaccinated, it would lay him off.

[23] However, the employer later stated that this was an error. It did not consider that the Claimant had been laid off because there was work available. The employer reviewed the Claimant’s separation as a “quit.”

[24] It is irrelevant how the employer or the Claimant characterized the separation. An employer’s determination or subjective assessment of whether a claimant engaged in misconduct or quit does not define misconduct for the purposes of the Employment Insurance Act.

[25] Instead of looking at the employer’s or employee’s determination as to whether misconduct occurred for the purposes of the Employment Insurance Act, the General Division had to conduct its own objective analysis as to whether misconduct arose.

[26] The General Division did not directly address the Claimant’s arguments that he had been laid off from his employment. But the evidence simply does not support the Claimant’s arguments, as the employer clearly stated that it did not lay off the Claimant. There was work available for him.

[27] The General Division examined whether the Claimant voluntarily left his employment or was dismissed because of misconduct.

[28] The General Division examined the evidence to determine the reason behind the Claimant’s separation from his employment. The General Division found that the evidence showed that the Claimant did not voluntarily leave his employment. (The Claimant does not disagree with this finding.)

[29] The General Division then examined why the Claimant lost his employment and whether that reason constituted misconduct. The General Division acknowledged the parties’ arguments about whether the Claimant had committed any misconduct. It concluded that the evidence supported a finding of misconduct.

[30] The General Division addressed the evidence before it. While it did not specifically mention the employer’s October 2021 email, the email was not determinative. And besides, even the employer stated that the email was in error.

[31] The Claimant does not have an arguable case that the General Division overlooked any evidence. So, I would not have granted leave to appeal even if I had granted an extension of time.

Conclusion

[32] I have not given the Claimant an extension of time to apply to the Appeal Division. This means that the application will not proceed.