Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The General Division did not make any reviewable errors.  

Overview

[2] The Appellant, J. M. (Claimant), was suspended from her job. Her employer implemented a vaccination policy that required employees to be vaccinated against COVID-19 unless they were being accommodated for certain reasons set out in the policy. The Claimant requested an accommodation for religious reasons, but it was denied. She did not get vaccinated, and her employer suspended her.

[3] The Claimant applied for employment insurance (EI) benefits. The Respondent, the Canada Employment Insurance Commission (Commission) decided that the Claimant was suspended from her job due to her own misconduct and was disentitled from being paid benefits.

[4] The Claimant appealed this decision to the Tribunal’s General Division. The General Division dismissed the appeal. It found that the Commission had proven that the reason for the Claimant’s suspension is considered misconduct under the Employment Insurance Act (EI Act). It found that she is disqualified from receiving benefits.

[5] The Claimant is now appealing the General Division decision. She argues that the General Division made numerous errors in its decision.

[6] I am dismissing the Claimant’s appeal. The General Division did not make any reviewable errors in its decision. The Claimant was suspended due to misconduct and cannot be paid EI benefits.

Issues

[7] The issues in this appeal are:

1. a) Was the General Division biased?
2. b) Did the General Division err by refusing to exercise its jurisdiction when it did not consider cases the Claimant cited?
3. c) Did the General Division make an error of law by relying on irrelevant case law?
4. d) Did the General Division make an error of law by failing to consider all of the relevant evidence?
5. e) Did the General Division make an error of law by failing to consider whether the policy violated the Claimant’s Charter rights?^{Footnote 1}
6. f) Did the General Division make an error of law by failing to consider the employer’s conduct and the validity of the vaccination policy?
7. g) Did the General Division base its decision on any important factual errors?

Analysis

[8] I can intervene in this case only if the General Division made a relevant error. So, I have to consider whether the General Division:^{Footnote 2}

• failed to provide a fair process;
• failed to decide an issue that it should have decided, or decided an issue that it should not have decided;
• misinterpreted or misapplied the law; or
• based its decision on an important mistake about the facts of the case.

The General Division did not make any reviewable errors

The General Division decision

[9] The Claimant worked for the Federal government. Her employer introduced a policy concerning vaccination against COVID-19 on October 6, 2021. The policy required employees to be fully vaccinated unless they were being accommodated for medical or religious reasons.^{Footnote 3}

[10] The Claimant requested accommodation on the basis of her religious beliefs.^{Footnote 4} The request was initially approved by her manager.^{Footnote 5} The request was then reviewed by a committee established by her employer.

[11] By letter dated January 18, 2022, the Claimant was advised that her request for accommodation was denied and that she had two weeks to attest to her vaccination status.^{Footnote 6} She was also told that she would be placed on leave without pay (LWOP) if she did not comply with the policy by February 15, 2022.

[12] The Claimant appealed the decision of her employer.^{Footnote 7} On February 10, 2022, the employer denied the appeal and maintained the decision not to accommodate the Claimant on the basis of her religious beliefs.^{Footnote 8} She was placed on LWOP on February 15, 2022.

[13] The Claimant applied for EI regular benefits. Initially, the Commission decided that she could not be paid benefits because she had voluntarily taken a leave of absence without just cause.^{Footnote 9} On reconsideration, the Commission decided that the Claimant was not entitled to benefits because she had been suspended due to misconduct.^{Footnote 10}

[14] The Claimant appealed the Commission’s decision to the Tribunal’s General Division. The General Division had to decide why the Claimant stopped working and whether this reason amounted to misconduct under the law.

[15] The General Division found that the Claimant was suspended from her job for not complying with her employer’s vaccination policy.^{Footnote 11} It found that the Commission had proven that the Claimant’s misconduct was the reason for the suspension.^{Footnote 12} It based its decision on the following:

• The Claimant was aware of the policy and what was expected of employees.
• The employer communicated its expectations to the Claimant when it denied her accommodation request and her appeal of that decision.
• The Claimant knew or ought to have known that she would be placed on a LWOP if she did not comply with the policy.^{Footnote 13}
• The Claimant’s actions were deliberate.^{Footnote 14}

[16] The General Division also acknowledged that the Claimant made arguments concerning the following:

• She only had four days to comply after her appeal of the accommodation request was denied.
• The vaccination policy was not law and not part of her employment contract.
• She did not think she would be suspended because she believed she was legally entitled to be accommodated based on her religious beliefs.
• She was being coerced by her employer.^{Footnote 15}

[17] The General Division found that the Claimant should have been aware, when her appeal of the accommodation request was denied, that she had to get a first dose of the vaccine, or she would be suspended.^{Footnote 16}  

[18] The General Division also found that it was not within its jurisdiction to decide whether the employer’s denial of her accommodation request was reasonable or if the policy was part of the Claimant’s employment contract. It stated that there are other avenues for the Claimant to address these concerns.^{Footnote 17}

The General Division was not biased

[19] The Claimant argues that the General Division deliberately ignored her evidence and fabricated facts. She says that this demonstrates that the General Division was biased and never intended to allow her appeal.^{Footnote 18}

[20] As I discuss below, I haven’t found that the General Division based its decision on any important factual errors. The General Division did not come to the conclusion that the Claimant wanted, but I do not find that this amounts to bias. The General Division explained the reasons for its findings, with reference to the evidence.

[21] The threshold for a finding of bias is high, and the party making the allegation has the burden of proof. An allegation of bias cannot rest on suspicion, pure conjecture, insinuations, or mere impressions.^{Footnote 19} The Supreme Court of Canada has said that the test for bias is: “What would an informed person, viewing the matter realistically and practically and having thought the matter through conclude?”^{Footnote 20}

[22] I don’t see any evidence that the General Division was biased against the Claimant. The General Division considered the Claimant’s arguments and evidence and did not fabricate facts.

The General Division did not make an error of jurisdiction

[23] The Claimant argues that it was within the General Division’s jurisdiction to decide her appeal in her favour. She says that she cited five other decisions from the General Division that concerned the same vaccination policy and those claimants were not found to have committed misconduct.^{Footnote 21}

[24] The Claimant argues that the General Division chose to ignore the cases that she cited and instead relied on cases from the Federal Court and Federal Court of Appeal that concerned very different facts. She says that these cases are not relevant to her circumstances.^{Footnote 22}

[25] I find that the Claimant’s arguments to not point to an error of jurisdiction by the General Division. The General Division was required to decide why the Claimant was no longer working, and whether this reason amounted to misconduct under the EI Act.

[26] The General Division is not bound by other General Division decisions, but it is bound by relevant decisions from the Federal Court and the Federal Court of Appeal. The decisions relied on by the General Division may have different facts but the principles from those cases apply to an analysis of misconduct, regardless of factual differences.

[27] The General Division decided the questions it was required to decide and did not fail to decide any issues that were before it. There is no evidence that the General Division made an error of jurisdiction.

The General Division did not make an error of law

[28] The Claimant argues that the General Division made numerous legal errors. As discussed above, she says that the General Division ignored the cases that she relied on and applied irrelevant cases in its decision. She also says that the General Division failed to consider the following:

• Her employer did not accuse her of misconduct and her Record of Employment does not show that she was on a LWOP due to misconduct.^{Footnote 23}
• She fully complied with the policy by submitting her request for accommodation.^{Footnote 24}
• The employer’s policy was moot and therefore there could be no misconduct.^{Footnote 25}
• The General Division had a duty to consider all relevant laws including the Charter.^{Footnote 26}
• The General Division failed to consider whether the employer acted reasonably when it implemented the vaccination policy.^{Footnote 27}

[29] The General Division was not required to address all of the decisions that the Claimant relied on. As previously stated, it is not bound by other General Division decisions. The cases from the Federal Court and the Federal Court of Appeal are binding on it and it did not err by relying on those decisions.

[30] The Claimant’s arguments concerning the validity of the policy and whether the employer infringed on her Charter rights were addressed by the General Division when it concluded that it cannot consider the conduct of the employer.

[31] The General Division did not err in law by failing to consider the validity of the employer’s policy. The Federal Court of Appeal has said that it is not the employer’s conduct which is in issue and concerns about the employer’s actions can be dealt with in other forums.^{Footnote 28}

[32] A recent decision from the Federal Court, Cecchetto v Canada (Attorney General), considered the issue of misconduct and a claimant’s refusal to follow the employer’s COVID-19 vaccination policy.^{Footnote 29}

[33] The claimant in Cecchetto argued that refusing to abide by a vaccine policy unilaterally imposed by an employer is not misconduct and that it was not proven that the vaccine was safe and efficient. The claimant felt discriminated against because of his personal medical choice. He argued that he has the right to control his own bodily integrity and that his rights were violated under Canadian and international law.^{Footnote 30}

[34] The Court confirmed that these are not issues that the Tribunal is permitted, by law, to address. It confirmed that the Tribunal cannot consider the conduct of the employer or the validity of the vaccination policy.^{Footnote 31} The Court agreed that an employee who made a deliberate decision not to follow his employer’s vaccination policy had lost his job due to misconduct.

[35] This was also recently confirmed by the Federal Court of Appeal in Sullivan v Canada (Attorney General).^{Footnote 32} In that case, the Court confirmed that the Tribunal is not the forum to question employer policies or determine whether claimants were wrongfully dismissed. Similarly, whether or not the employer’s policy violated the Claimant’s rights was not an issue that the General Division could determine.

[36] Despite the fact that the ROE did not indicate misconduct, and the employer did not accuse the Claimant of misconduct, the General Division still had to determine whether the Claimant’s actions constituted misconduct under the EI Act.

[37] The General Division accurately set out and applied the key principles established in case law from the Federal Court and the Federal Court of Appeal.^{Footnote 33} The courts have said that misconduct is conduct that is willful, which means that the conduct was conscious, deliberate, or intentional.^{Footnote 34} It also includes conduct that is so reckless that it is almost willful. It is not necessary that a claimant have a wrongful intent.^{Footnote 35}

[38] The Courts have also said that there is misconduct when a claimant knew or should have known that the conduct could get in the way of carrying out their duty to their employer and dismissal was a real possibility.^{Footnote 36} The question is not whether the suspension or dismissal was justified in a labour law context, but whether the claimant could foresee that they would be suspended or dismissed.^{Footnote 37}

[39] The General Division explained why it found that the Claimant’s conduct amounted to misconduct. It applied the law to the facts and its findings were consistent with the evidence before it. The General Division did not make any errors of law.

The General Division did not base its decision on any important factual errors

[40] The Claimant argues that the General Division made important factual errors in its decision.^{Footnote 38} The General Division stated in its decision that the Claimant did not disagree that she was suspended for not complying with the policy.^{Footnote 39}

[41] The Claimant says that she has always maintained that she complied with the vaccination policy by requesting a religious accommodation and the General Division made a factual error.^{Footnote 40} She also argues that she was not suspended, but rather placed on an administrative LWOP.^{Footnote 41}

[42] The Claimant argues that the General Division erred when it found that she knew that she could be suspended and the evidence she presented was that she did not believe that the employer could suspend her.^{Footnote 42}

[43] The Claimant says that the General Division misunderstood the difference between an exemption and an accommodation. She says that she had a valid exemption that the employer had a duty to accommodate. She argues that the General Division made a factual error when it found that the employer denied her request for an exemption.^{Footnote 43}

[44] The Claimant also takes issue with the General Division’s statement that the employer sent her several letters to the Appellant and says there was only one letter.^{Footnote 44}

[45] I find that the General Division did not base its decision on any important factual errors. The General Division stated that the Claimant did not disagree that she was temporarily no longer working because she went against her employer’s vaccination policy.^{Footnote 45} It then went on to summarize the Claimant’s arguments concerning why her conduct was not misconduct.

[46] The Claimant was no longer working because her employer placed her on a LWOP. The Claimant did not want to be placed on leave and had requested accommodation. When the employer refused, it placed her on leave, citing the vaccination policy. The Claimant was no longer working because of her employer’s interpretation and application of the policy.

[47] I understand why the Claimant disagrees with the General Division’s characterization of the reason she was no longer working. However, I do not find that this amounts to an important factual error.

[48] I also find that the General Division did not make a factual error by referring to the Claimant as having been suspended. There is no dispute that the Claimant was on an administrative leave of absence and that the leave was imposed by the employer. Placing the Claimant on an involuntary leave of absence was equivalent to a suspension.

[49] The General Division addressed the Claimant’s position that she did not know that she would be suspended.^{Footnote 46} Based on the communication from the employer to the Claimant, it found that she knew, or should have known, that she would be suspended if she did not get vaccinated after the accommodation request was denied.^{Footnote 47} The General Division did not base this finding on any factual errors.

[50] While there was one letter from the employer, there was additional email communication in which the employer conveyed its denial of the Claimant’s appeal.^{Footnote 48} There was also further communication between the Claimant and the employer when she asked further questions that the employer refused to answer.^{Footnote 49} In both of these communications, the employer restated that the Claimant would be placed on a leave of absence on February 15, 2022 if she did not get vaccinated.

[51] I find that the General Division did not make an error of fact when it found that the Claimant was sent letters several times to communicate what it expected. The emails she received can be characterized as letters in which the employer set out its expectations.

[52] The General Division did not base its decision on any important factual errors.

Conclusion

[53] The General Division properly cited and applied the law concerning misconduct. It supported its findings with evidence and explained the reasons for its decision. It did not make any reviewable errors when it determined that the Claimant was suspended because of misconduct.

[54] The appeal is dismissed.