Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Appellant, R. M. (Claimant), is disentitled from receiving Employment Insurance benefits.

Overview

[2] The Claimant is appealing the General Division decision. The General Division decided that the Claimant was disentitled from receiving Employment Insurance benefits because she had been suspended from her employment due to misconduct.^{Footnote 1} In other words, it found that she had done something or had failed to do something that caused her to be suspended. The General Division found that she had not complied with her employer’s vaccination policy.

[3] The Claimant denies that she committed any misconduct. She argues that the General Division made legal and factual errors. In particular, she says that the General Division misinterpreted what misconduct means. She also says that it failed to consider the reasonableness of her employer’s vaccination policy, and that it failed to consider her collective agreement, which did not require vaccination.

[4] The Claimant says that if the General Division had considered the reasonableness of her employer’s policy, as well as her collective agreement, it would have found that she did not have to comply with the policy. And, she says, it would have concluded that she did not commit any misconduct.

[5] The Claimant asks the Appeal Division to give the decision she says the General Division should have made. She asks the Appeal Division to find that she did not commit any misconduct. The Claimant also asks the Appeal Division to find that she is not disentitled from receiving Employment Insurance benefits.

[6] The Commission argues that the General Division did not make any errors. The Commission asks the Appeal Division to dismiss the appeal.

Issues

[7] The issues in this appeal are as follows:

1. a)  Did the General Division fail to consider the reasonableness of the Claimant’s employer’s vaccination policy?
2. b)  Did the General Division fail to consider the Claimant’s collective agreement?

Analysis

[8] 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}

The General Division did not fail to consider the reasonableness of the Claimant’s employer’s vaccination policy

[9] The General Division did not fail to consider the reasonableness of the Claimant’s employer’s vaccination policy.

[10] The Claimant denies that she committed misconduct because she says that she did not have to comply with a policy that was unreasonable. She says data does not support her employer’s vaccination policy. The Claimant also points to labour arbitration decisions. She says that arbitrators have found that vaccination policies are no longer reasonable.

[11] As well, the Claimant says that her employer could have accommodated her by allowing her to work from home. She was an excellent employe and dismissal could have been avoided.

[12] However, arguments about the reasonableness of an employer’s vaccination policy and the possibility of accommodations 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.

[13] In Matti,^{Footnote 3} the Federal Court determined:

… This Court’s jurisprudence confirms that the SST [the General and Appeal Divisions] does not have jurisdiction to, and therefore should not, consider the soundness of the Policy: Cecchetto v  Canada (Attorney General), 2023 FC 102 [Cecchetto] at paras 32, 48; Milovac v Canada (Attorney General), 2023 FC 1120 at para 27; Kuk, above at para 45. In my view, the General and Appeal Divisions reasonably focused instead on the Applicant’s behaviour and whether that amounted to misconduct in the legal sense in his situation.

[14] And in Davidson, the Federal Court 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 4}

[15] The Federal Court of Appeal also addressed this issue recently, in Sullivan. There, the Court confirmed that “the law is that the Social Security Tribunal cannot delve into whether the dismissal was proper or the reasonableness of an employer’s work policies that led to the dismissal.” ^{Footnote 5}

[16] Decisions of the Federal Court and Court of Appeal are binding on the Tribunal. This means that the General Division and the Appeal Division are required to follow these decisions. So, the General Division did not fail to consider the reasonableness of the Claimant’s employer’s vaccination policy. It simply fell outside its jurisdiction to do so.

The General Division did not fail to consider the Claimant’s collective agreement

[17] The General Division did not fail to consider the Claimant’s collective agreement. The agreement was irrelevant to the misconduct question.

[18] The Claimant argues that for misconduct to arise, there has to be a breach of a term or condition of one’s collective agreement or contract of employment. In other words, she says the requirement to get vaccinated had to be in her collective agreement. Or, if her employer wanted to introduce a new condition, she says she had to agree with and consent to that new condition.

[19] The Claimant notes that her collective agreement did not stipulate that she needed to be vaccinated in order to perform her job. So, she says that misconduct did not arise. Further, she says that she fulfilled all of the duties required of her under her collective agreement.

[20] The Claimant relies on several labour arbitration decisions and A.L.,^{Footnote 6} a decision of the General Division. However, the labour arbitration decisions are not applicable. They do not deal with the issue of misconduct under the Employment Insurance Act.

[21] As for A.L., the General Division found that A.L. had not committed misconduct because the employer had unilaterally introduced a vaccination policy without consulting employees and getting their consent.

[22] The Appeal Division has since overturned the General Division’s decision.^{Footnote 7} The Appeal Division found that the General Division made jurisdictional and legal mistakes.

[23] The Appeal Division in that case found that the General Division overstepped its jurisdiction by examining A.L.’s contract. The Appeal Division also found that the General Division made a legal error when it declared that an employer could not impose new conditions to the collective agreement and that there had to be a breach of the employment contract for misconduct to arise. These were irrelevant considerations.

[24] The Appeal Division’s decision in A.L. is consistent with the law. It is well established that there does not have to be a breach of the collective agreement or contract of employment for misconduct to arise. Or, put another way, an employer’s policies and requirements do not have to be in the collective agreement or contract of employment for misconduct to arise. As long as an employer has a policy or requirement, an employee will be expected to comply with that policy.^{Footnote 8}

[25] The courts have endorsed this approach in the COVID-19 vaccination context. Many collective agreements and employment contracts have not required vaccination. But the courts have determined that it does not matter that vaccination policies have not been part of a claimant’s contract of employment.

[26] In Matti,^{Footnote 9} the Federal Court wrote:

In addition, the Applicant argues that, as it relates to the definition of misconduct under the [Employment Insurance Act], a condition of employment must exist at the time the employment contract is formed. He did not provide any supporting authorities, however, for this assertion. I agree with the Respondent that, based on applicable jurisprudence, it was not necessary for the Policy to be in the initial agreement; misconduct can be assessed in relation to policies that arise after the employment relationship begins. (My emphasis)

[27] The Court cited Karelia, Cecchetto,^{Footnote 10} and Kuk.^{Footnote 11}In Kuk, the appellant chose not to comply with his employer’s vaccination policy. The policy was not part of his employment contract. The Federal Court found that the employer’s vaccination requirements did not have to be part of Mr. Kuk’s employment agreement. The Federal Court found that 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. This was the same situation in Cecchetto.

[28] The Federal Court came to the same conclusion in Milovac. The Federal Court found that there was misconduct when Mr. Milovac did not comply with a policy that was not part of his contract of employment.

[29] I am not satisfied that the General Division failed to consider the Claimant’s collective agreement when deciding whether she had committed misconduct. As the Federal Court stated, “[M]isconduct can be assessed in relation to policies that arise after the employment relationship begins.”^{Footnote 12}

Conclusion

[30] The appeal is dismissed. The General Division did not make an error that falls within the permitted grounds of appeal. The Claimant is disentitled from receiving Employment Insurance benefits.