Employment Insurance (EI)

Decision

[1] The appeal is allowed in part.

[2] The Appellant, K. E. (Claimant), is not disentitled from receiving Employment Insurance benefits for the period between June 23, 2022 and August 15, 2022. The Claimant remains disentitled from receiving Employment Insurance benefits after August 15, 2022.

Overview

[3] The Claimant is appealing the General Division decision. The General Division found that the Respondent, the Canada Employment Insurance Commission (Commission), proved that the Claimant had been suspended from her job on June 23, 2022, because of misconduct. In other words, she had done something or had failed to do something that caused her to lose her job. The General Division found that she had not complied with her employer’s vaccination policy.

[4] The General Division also found that, because of her misconduct, the Claimant was disqualified from receiving Employment Insurance benefits.^{Footnote 1}

[5] The Claimant denies that she committed any misconduct. She argues that the General Division made procedural, legal, and factual errors. She argues, for instance, that the General Division misinterpreted her employer’s vaccination policy. She also argues that it made important mistakes about the evidence. She says the evidence shows that her employer’s vaccination policy did not apply to her but that if it did, that she was compliant with the policy

[6] The Claimant asks the Appeal Division to give the decision she says the General Division should have made. She asks the Appeal Division to make a finding that (1) her employer’s vaccination policy did not apply to her because she was on a medical leave of absence and (2) if it did apply, she was compliant with the policy anyway.

[7] The Claimant also asks the Appeal Division to find that she is entitled to receive Employment Insurance benefits as of June 23, 2022, when her employer placed her on an unpaid leave of absence.

[8] The Commission concedes that the General Division made legal and factual errors. However, the Commission argues that the General Division’s errors do not change the outcome as it says the Claimant still committed misconduct. It asks the Appeal Division to dismiss the appeal. The Commission requests the Appeal Division to find that the Claimant was disentitled from receiving Employment Insurance benefits as of August 15, 2022 because she was suspended due to her own misconduct.

Issues

[9] The issues in this appeal are:

1. a) Did the General Division have a fair process?
2. b) Did the General Division make a legal error when it found that the Claimant was disqualified from receiving Employment Insurance benefits for a suspension?
3. c) Did the General Division misinterpret what misconduct means?
4. d) Did the General Division fail to follow other General Division decisions?
5. e) Did the General Division base its decision on any factual errors?
6. f) If the answer is “yes” to any of the above, how does that change the outcome?

Analysis

[10] The Appeal Division may intervene in General Division decisions if the General Division made any jurisdictional, procedural, legal, or certain types of factual errors.^{Footnote 2}

[11] For these types of factual errors, the General Division had to have based its decision on that error, and had to have made the error in a perverse or capricious manner, or without regard for the evidence before it.^{Footnote 3}

The General Division process was fair

[12] The General Division process was fair. The Claimant argues that the General Division process was unfair because (1) she did not get a fair hearing, (2) the member overlooked some of the facts, and (2) the member did not follow two other General Division cases.

[13] Apart from that, the Claimant does not identify anything else 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.

[14] The Claimant says that she did not get a fair hearing because she did not have the chance to fully present her case. She also says that her disability (anxiety) prevented her from being able to comment on everything. She says that she felt rushed and was extremely upset, which interfered with her ability to fully present her case.

[15] The Social Security Tribunal scheduled the hearing in mid-April 2023, giving the Claimant approximately three months to prepare. The Tribunal scheduled 90 minutes for the hearing. The hearing lasted for about 57 minutes. During that time, the member allowed the Claimant to present her case and also invited her to make any closing statements as well. I did not locate any instances when the member rushed the Claimant or refused to let her respond to any issues. The Claimant did not object at the time that she had insufficient time, nor did she signal to the member that she was unable to or was having any problems presenting her case.

[16] Apart from the hearing, the Claimant also had the chance to file any documents and submissions. She availed herself of this opportunity, having filed documents on at least three different dates.

[17] I do not see any indication at anytime during the process where the General Division might not have given the Claimant a full and fair opportunity to present her case.

[18] The Claimant says that the General Division acted unfairly by overlooking some of the evidence and not following other cases. Those are not typically procedural matters. I will address those arguments under the headings of error of law and fact.

The General Division made a legal error when it found that the Claimant was disqualified from receiving Employment Insurance benefits for a suspension

[19] The General Division made a legal error when it found that the Claimant was disqualified from receiving Employment Insurance benefits for being suspended from her employment due to misconduct.

[20] A suspension for misconduct results in a disentitlement, rather than a disqualification from receiving Employment Insurance benefits.^{Footnote 4} The result may appear the same to the claimant, as she does not receive any benefits under either. But, there is a distinction between the two. A disqualification can lead to harsher consequences. So, the General Division made a mistake in finding that she was disqualified from receiving Employment Insurance benefits. The disqualification should have been changed to a disentitlement. 

[21] The Claimant disputes that she committed any misconduct, irrespective of whether it results in a disentitlement or disqualification. Hence, it is necessary to address the balance of the Claimant’s arguments about whether the General Division made any errors when it decided that she had committed misconduct.

The General Division did not misinterpret what misconduct means

[22] 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

[23] The Claimant says that the General Division misinterpreted what misconduct means by failing to require that there be any wrongdoing. She says that misconduct involves inappropriate conduct or behaviour.

[24] The Claimant denies that she committed any misconduct because she did not do anything wrong or inappropriate. She simply exercised her right to choose not to get vaccinated. She says refusing vaccination does not constitute serious wrongdoing or doing anything inappropriate.

[25] The Claimant also notes that her employer never suggest that she committed misconduct. Her performance review^{Footnote 5} made no mention of misconduct, and her record of employment stated “leave of absence” to explain her separation from work, rather than a dismissal or suspension.^{Footnote 6}

[26] 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.

[27] 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}

[28] 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.

[29] 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.

Misconduct can arise even if an employer introduces a new policy that is not part of an employee’s original employment contract or collective agreement

[30] The Claimant also argues that for misconduct to arise, there has to be a breach of one’s collective agreement or employment contract. In her case, she notes that her collective agreement did not require vaccination. So, she denies that there was any misconduct. She says the General Division failed to consider her collective agreement.

[31] However, it has become well established that an employer’s policies and requirements do not have to form part of the employment contract or collective agreement for there to be misconduct.

[32] Over the past year, the Federal Court and Federal Court of Appeal have issued several cases involving employees who did not comply with their respective employer’s vaccination policies. In each case, none of the original employment contracts or collective agreements required vaccination against COVID-19. Yet, the courts were prepared to accept that there had been misconduct when the employees did not comply with their employer’s vaccination policies.

[33] For instance, in Matti,^{Footnote 9} the Federal Court determined that it was unnecessary for the employer’s vaccination policy to be in the initial agreement, as “misconduct can be assessed in relation to policies that arise after the employment relationship begins.”

[34] In the case of Kuk,^{Footnote 10} Mr. Kuk chose not to comply with his employer’s vaccination policy. The policy did not form part of his employment contract. The Federal Court found that, even so, there was misconduct because Mr. Kuk knowingly did not comply with his employer’s vaccination policy and knew what the consequences would be if he did not comply.

[35] In Cecchetto^{Footnote 11}and in Milovac,^{Footnote 12} vaccination was not part of the collective agreement or contract of employment in those cases. The Federal Court found that there was misconduct when the appellants did not comply with their employer’s vaccination policies.

[36] There are also many cases outside of the context of vaccination policies that show that an employer’s policies do not have to form part of an employee’s employment contract or a collective agreement for there to be misconduct.^{Footnote 13}

The legality or reasonableness of a policy is irrelevant to the misconduct question

[37] The Claimant denies that she committed misconduct because her employer’s policy was unlawful and unreasonable. She says that she was merely exercising her rights by not getting vaccinated.

[38] However, arguments about the legality and reasonableness of an employer’s vaccination policy are irrelevant to the misconduct issue. The Federal Court has held that the General Division and the Appeal Division do not have the authority to address these types of arguments. In Cecchetto, the Court wrote:

As noted earlier, it is likely that the Applicant [Cecchetto] will find this result frustrating, because my reasons do not deal with the fundamental legal, ethical, and factual questions he is raising. That is because many of these questions are simply beyond the scope of this case. It is not unreasonable for a decision-maker to fail to address legal arguments that fall outside the scope of its legal mandate.

The SST-GD [Social Security Tribunal-General Division], and the Appeal Division, have an important, but narrow and specific role to play in the legal system. In this case, the role involved determining why the Applicant [Cecchetto] was dismissed from his employment, and whether that reason constituted “misconduct.”…

Despite the Claimant’s arguments, there is no basis to overturn the Appeal Division’s decision because of its failure to assess or rule on the merits, legitimacy, or legality of Directive 6. That sort of finding was not within the mandate or jurisdiction of the Appeal Division, nor the SSTGD. [Citation omitted]^{Footnote 14}

(My emphasis)

The Federal Court has held that the General Division and Appeal Division, “are not the appropriate fora to determine whether the [employer’s] policy or [the employee’s] termination were reasonable.”^{Footnote 15}

An employer’s lack of accommodation is irrelevant to the misconduct question

[39] The Claimant argues that misconduct did not arise because her employer could have accommodated her, rather than placing her on an unpaid leave of absence for not getting vaccinated. She could have continued working from home.

[40] However, the Federal Court of Appeal has found that an employer’s duty to accommodate is irrelevant to whether there is misconduct under the Employment Insurance Act. In other words, in determining whether there was any misconduct, the General Division did not have to consider whether the Claimant’s employer could have accommodated the Claimant.

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

[41] The Claimant says that for misconduct to arise, an employee’s conduct has to interfere with the performance of their duties. However, this was the same definition that the General Division cited at paragraph 13, where it wrote, “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 (or suspended) because of that.”^{Footnote 16}

[42] The Claimant also says the General Division failed to apply this part of the definition of misconduct. But the General Division examined what was required of the Claimant and whether she had consciously and deliberately chosen to meet those requirements.

[43] The General Division properly noted that misconduct involves interference with the performance of one’s duties. It also properly applied the law to the facts.

The General Division did not fail to follow two General Division cases

[44] The Claimant says the General Division failed to follow A.L.^{Footnote 17} and H.P.,^{Footnote 18} two decisions issued by the General Division.

[45] Unlike court cases, decisions of the General Division do not have any precedential value. The General Division is not bound to follow decisions of the General Division, so it did not fail to follow the two decisions. General Division decisions may be of some guidance though, particularly when there are similar facts involved.

[46] The other issue too is that it does not appear that the Claimant provided a copy or citation of these two decisions to the General Division. So, it cannot be expected nor faulted if it was unaware that the Claimant was relying on them.

[47] Even so, the Claimant says that both decisions are similar to her case. She says she should have been able to expect some consistency in the outcome of her case.

[48] The General Division found that there was no misconduct in A.L. because the employer had unilaterally introduced a vaccination policy without consulting employees and getting their consent.

[49] However, the Appeal Division has since overturned A.L.,^{Footnote 19} so it is unlikely that the General Division would have followed or applied A.L.

[50] The Appeal Division in A.L. found that the General Division overstepped its jurisdiction by examining A.L.’s employment contract. The Appeal Division also found that the General Division made legal errors. The General Division made an error when it declared that an employer could not impose new conditions to the collective agreement. The Appeal Division found that the General Division also made an error when it found that there had to be a breach of the employment contract for misconduct to arise.^{Footnote 20}

[51] In H.P., the General Division found that there was no misconduct because there was no evidence that the employer ever told H.P. that it was denying her exemption request, that she was told that she had to comply with the policy, or that it gave her time to comply with its policy after it turned down her exemption request.

[52] The General Division found that there was not enough evidence to conclude that H.P. deliberately, consciously, intentionally, or wilfully violated the employer’s vaccination policy. Because the General Division found that the Claimant did not know that her employer had turned down her exemption request, it found that she could not have known that she would be unable to carry out her duties or that there was a real possibility of suspension.

[53] H.P. was very fact specific. There are no new legal principles that emerge from H.P. In fact, the General Division in both cases set out the same definition of misconduct and cited the same legal authorities.

The General Division made a factual error

[54] The General Division did not make a factual error about whether she was exempt from or had complied with her employer’s vaccination policy. However, the General Division made a factual error when it found that she was aware or should have been aware that her employer’s vaccination applied in June 2022.

[55] The Claimant argues that the General Division improperly concluded that she had committed misconduct. She says its conclusion was based on erroneous findings and false assumptions that her employer’s vaccination policy applied to her and that she had not been compliant with it. The Claimant says that although the policy did not apply to her, she still complied with it by disclosing her vaccination status.

The employer’s vaccination policy applied to the Claimant

[56] The employer’s vaccination policy applied to the Claimant even if she was on a medical leave of absence from her permanent part-time position. This is because the Claimant was working in another capacity with her employer as part of a medical accommodation. She worked as a casual employee. Therefore, the policy applied to her in her capacity as a casual employee.

[57] The Claimant says that she had been on a medical leave of absence from her permanent part-time position since December 2020 and on a medical accommodation since January 2021.^{Footnote 21} Her employer let her work from home in a casual position.

[58] The Claimant’s employer introduced its vaccination policy in October 2021. The Claimant was aware of her employer’s vaccination policy. The policy required employees to get vaccinated unless they had an approved exemption.

[59] The Claimant says that there was no need for her to undergo vaccination as she worked from home and did not attend at her employer’s workplace. She did not have direct contact with other employees or clients.

[60] The Claimant also says that section 1.2.1 of the policy applied to her. The section exempted employees on a leave of absence from having to comply with the policy until they anticipated returning to work. The Claimant was on a medical leave of absence from her permanent position. So, she says the policy did not apply to her.

[61] The policy reads as follows:

1. Employees
2. 1. All employees … must:
   1. 1.1. Be fully vaccinated against COVID-19 … unless exempted due to a recognized medical contraindication or another protected ground in the … Human Rights Act.
   2. 1.2. Provide proof of Full Vaccination or approved exception to OHSW by November 30, 2021.
      1. 1.2.1. Or by anticipated date of return (beyond November 30, 2021) for Employees on any Leave of Absence (including medical leave).
         1. …
3. Valid Exceptions to Vaccination
4. 15. Valid medical exceptions to the COVID-19 vaccine must be:
   1. 15.1. Approved as per direction from the … Chief Medical Officer
      1. 15.1.1. Refer to COVID-19 Mandatory Vaccination Protocol for Employers, Operators and Employees in High-Risk Settings
   2. 15.2 Issued by the Team Member’s primary health care provider, and
   3. 15.3 Provided to Medical Affairs and or Occupational Health and Safety & Wellness (OHSW), as appropriate.
5. 16. Exceptions under a protected ground in the … Human Rights Act must be submitted to Medical Affairs or People Services, as applicable, for consideration of exception.
6. 17. Valid exceptions received a reviewed on a case-by-case basis and may result in measures such as reassignment to alternative work.^{Footnote 22}

[62] While the Claimant may have been on a medical leave of absence in relation to her permanent part-time position, she was nonetheless actively working for the same employer, even if it was in a different capacity and under a medical accommodation.

[63] The vaccination policy makes it clear that the employer contemplated that the policy applied to all employees, other than to those who were not working (in which case it would apply when they anticipated returning to work). So, the policy had to have applied to the Claimant in the capacity in which she was working.

[64] The policy did not provide exemptions to those who worked from home or away from the employer’s workplace. The employed listed the exceptions that were valid and available under its policy. Working remotely was not on the list, unlike medical exceptions or ones for a protected ground in the provincial Human Rights Act.

[65] If there was any ambiguity as to whether the policy applied, the employer addressed this on June 23, 2022 when it advised the Claimant that it applied to her circumstances. So, the Claimant knew by at least June 23, 2022 that the policy applied and that her employer expected her to comply with it.

The Claimant was mistaken that she had an approved exception

[66] The evidence did not show that the Claimant had an approved exception. The employer defined what it considered a valid exception to vaccination. It was very specific. The exception had to be approved and it had to refer to the COVID-19 Mandatory Vaccination Protocol for Employers, Operators and Employees in High-Risk Settings.

[67] The Claimant says that, even if her employer’s vaccination policy applied to her, she had an approved medical exception as she was on a medical leave of absence from her permanent part-time position. However, this was insufficient.

[68] The Claimant had received her medical exemption before the employer had introduced its vaccination policy. There is no evidence in the hearing file that shows that the Chief Medical Officer had approved the Claimant’s medical exemption, or that her exemption referred to the COVID-19 Mandatory Vaccination Protocol for Employers, Operators and Employees in High-Risk Settings. Thus, she did meet the employer’s definition of an approved exception.

The evidence did not show that the Claimant should have been aware that up to June 23, 2022, she was not compliant with her employer’s vaccination policy

[69] The General Division made a factual error when it concluded that, up to June 23, 2022, the Claimant knew or should have been aware that she was not compliant with her employer’s vaccination policy.

[70] The Claimant had been working from home since January 2021. Her employer introduced its vaccination policy in October of that year. Under the policy, employees had to provide their proof of full vaccination or approved exception by November 30, 2021. The Claimant did not provide proof of full vaccination nor an approved exception by November 30, 2021. Her employer allowed her to continue working.

[71] In February 2022, the Claimant applied for and was offered a one-year term appointment that allowed her to continue working remotely.^{Footnote 23} The Claimant continued working while unvaccinated.

[72] Her employer reportedly told the Commission that the Claimant “slipped through the cracks and should have been placed on [an] unpaid leave of absence for non-compliance with the employer’s COVID-19 vaccination policy several months earlier.”^{Footnote 24}

[73] However, by allowing the Claimant to continue working while unvaccinated for several months—until June 23, 2022—the employer led the Claimant to mistakenly believe that she did not have to get fully vaccinated. Indeed, she thought that this was part of her medical accommodation.

[74] Hence, the Claimant could not have been aware and could not have reasonably known that by not being vaccinated, or by not getting improved exemption, she would face consequences and be suspended on June 23, 2022.

After June 23, 2022, the Claimant asked for a religious accommodation

[75] The employer says that once it learned that the Claimant was unvaccinated, it immediately contacted her and placed her on an unpaid leave of absence for non-compliance with its vaccination policy.^{Footnote 25} The Claimant confirmed this. She reportedly told the Commission that her manager called her on June 23, 2022 and informed her that she was being placed on an unpaid leave of absence effective immediately, due to not being vaccinated against COVID-19.^{Footnote 26} So, at that point, she knew that unless she got an exemption, she had to get fully vaccinated to be in compliance.

[76] On July 19, 2022, the Claimant asked her employer for an accommodation based on religious grounds.^{Footnote 27}

The Claimant’s employer denied the Claimant’s accommodation request

[77] On August 15, 2022, the employer told the Claimant that it was not accepting her accommodation request.^{Footnote 28} The Commission says the employer informed the Claimant of the process to follow if she intended to be vaccinated, including how she could return to work.

[78] The employer reminded the Claimant that COVID-19 vaccination was now a condition of her employment. It told her that by declining vaccination, she did not meet the requirements of the vaccination policy. She would remain on unpaid leave.

[79] The employer sent a follow-up letter on September 1, 2022, confirming that its vaccination policy applied and that the Claimant was expected to get fully vaccinated as a condition of her employment.^{Footnote 29}

[80] The Commission argues that the evidence clearly shows that, as of August 15, 2022:

1. i. the Claimant was aware that she did not have an approved exemption,
2. ii. her employer required her to be vaccinated otherwise she would continue to be suspended, and
3. iii. she made a deliberate and conscious choice not to take any further steps to try to comply (in other words, advise her employer of her intention to be vaccinated and to register for a first dose).

[81] The Commission argues that, given this evidence, the Claimant was therefore suspended from her employment due to her own misconduct, as of August 15, 2022. The Commission argues that, given the circumstances, it is irrelevant that the Claimant did not have adequate notice to comply with her employer’s policy after her employer denied her accommodation request.

[82] The employer had already suspended the Claimant as of June 23, 2022 because she was not vaccinated at that time. More importantly, the vaccination policy made it clear that employees had to either be fully vaccinated or have an approved exception by November 30, 2021. The policy did not say anything about extending the deadline for compliance for those who requested an accommodation after November 30, 2021.

[83] But, as the General Division determined, to be misconduct under the law, the conduct has to be wilful, meaning that the conduct is conscious, deliberate, or intentional.^{Footnote 30}

[84] There is misconduct if a claimant knew or should have known that their conduct could get in the way of carrying out their duties towards their employer and that there was a real possibility of being suspended or dismissed because of that.^{Footnote 31}

[85] The Claimant was not compliant with the policy on June 23, 2022. But, that did not mean her conduct was wilful at that point. She only learned that the policy applied to her and that she was not compliant on that date.

[86] When the employer first introduced its policy in October 2021, it gave employees several weeks’ notice that they either had to be fully vaccinated or have an approved exception. Given that the Claimant only learned by June 23, 2022 that the policy applied and that she had to comply, it was reasonable then that she was given a similar timeframe to either get fully vaccinated or get an approved exception.

[87] I accept that the evidence shows that the Claimant was on a suspension or leave of absence from her employment because of her own misconduct as of August 15, 2022.

[88] By that point, the Claimant had learned her employer had turned down her accommodation request. And, at that point, she also made a deliberate and conscious decision not to fulfill her employer’s requirements otherwise, despite knowing that there would be consequences flowing from that.

Summary

[89] Until June 23, 2022, the Claimant had been unaware that her employer required that she be fully vaccinated or have an approved exception to its COVID-19 vaccination policy.

[90] The General Division found that the Claimant was disqualified from receiving Employment Insurance benefits starting June 23, 2022, for an indefinite period. However, the General Division made a legal and factual error. A suspension results in a disentitlement, not a disqualification.

[91] The evidence also showed that misconduct did not arise until August 15, 2022.^{Footnote 32} This means that the Claimant is not disentitled from receiving Employment Insurance benefits for the period between June 23, 2022 and August 15, 2022. The Claimant remains disentitled from receiving Employment Insurance benefits after August 15, 2022.

Conclusion

[92] The appeal is allowed in part. The disqualification is changed to a disentitlement. The starting date of the disentitlement from receiving Employment Insurance benefits is corrected from June 23, 2022 to August 15, 2022.