Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The General Division didn’t make any reviewable errors.

Overview

[3] A. C. is the Claimant. His employer implemented a policy during the COVID-19 pandemic. The policy included that all employees had to attest to their vaccination status.

[4] The Claimant felt that his vaccination status was his private medical information. He didn’t believe his employer had the right to ask for this information. He didn’t believe the policy was legal. Due to the Claimant not attesting to his vaccination status, his employer suspended him from working.

[5] The Claimant applied for Employment Insurance (EI) benefits. The Canada Employment Insurance Commission (Commission) denied his request for EI benefits. It said the suspension was due to the Claimant’s misconduct and he wasn’t entitled for that reason.

[6] The Social Security Tribunal (Tribunal) General Division agreed with the Commission. The Claimant has appealed the General Division decision. The Claimant says the General Division didn’t follow procedural fairness and made an error of law.^{Footnote 1}

[7] The Claimant argues the General Division didn’t articulate or apply the test under the EI Act for misconduct properly. He argues he should be entitled to EI benefits.

[8] I disagree. The General Division didn’t make a reviewable error. That means the appeal is dismissed.

Preliminary matters

[9] This matter was held in abeyance for a lengthy period of time while the Claimant was given time to access information. During the time in abeyance there were many decisions from higher courts released.

[10] The Claimant’s Legal Representative requested to have 60 days post-hearing to make submissions on recent case law from the Federal Court and Federal Court of Appeal surrounding similar issues. Given the lengthy amount of time the case was held in abeyance, I decided the Claimant’s Legal Representative should have been aware of the more recent case law. The parties agreed to April 26, 2024 to make post-hearing submissions and were entitled to reply to each other by May 3, 2024.

Issues

[11] The issues in this appeal are:

1. a) Did the General Division provide the Claimant with a fair process?
2. b) Did the General Division make an error of law by not considering the full test for misconduct under the Employment Insurance Act?

Analysis

[12] I can intervene only if the General Division made a relevant error. There are only certain errors I can consider.^{Footnote 2} Briefly, the errors I can consider are about whether the General Division did one of the following:

• acted unfairly in some way
• decided an issue it should not have, or didn’t decide an issue it should have
• didn’t follow or misinterpreted the law
• based its decision on an important error about the facts of the case

[13] The Claimant checked the boxes that the General Division didn’t follow procedural fairness; the General Division made an error of law; and the General Division made an important error of fact.^{Footnote 3}

The General Division provided the Claimant with a fair process

[14] The Claimant says the Hearing Member was biased. The Claimant says the Hearing Member was biased for two reasons. First, because it is alleged the Hearing Member stated the test for misconduct incorrectly. Second, because the Hearing Member asked what the Claimant’s vaccination status was.

[15] The issue of natural justice and bias was a ground alleged on the Claimant’s Notice of Appeal. I told the Claimant’s Legal Representative that bias is a high bar to meet. He said he didn’t want to belabour the point and said that I could just make a decision.^{Footnote 4} I told him he needed to put arguments forward for me to consider the issue. He didn’t.

[16] Allegations of bias are very serious. Members are presumed to be impartial. The test for bias is whether a reasonably well-informed person would think, in the circumstances, that the member would not decide the case fairly.^{Footnote 5} It isn’t enough to show suspicion of bias. There needs to be actual evidence of bias. This means the legal test for showing a decision-maker is biased is high.^{Footnote 6}

The Hearing Member didn’t exhibit bias when she stated the test for misconduct

[17] The Hearing Member, as part of her preamble, explained the EI Act doesn’t define misconduct.^{Footnote 7} She said that case law is looked at in terms of making a decision for what constitutes misconduct for EI purposes.^{Footnote 8}

[18] The Claimant’s Legal Representative objected to the test and said it wasn’t the complete test.^{Footnote 9} The Claimant’s Legal Representative said he would address this issue in submissions. The Hearing Member told the Claimant’s Legal Representative that he was welcome to make submissions on his position.^{Footnote 10}

[19] The Claimant’s Legal Representative later made submissions.^{Footnote 11} The Hearing Member considered what constituted misconduct and specifically refers to the decision the Claimant’s Legal Representative was relying on.^{Footnote 12}

[20] I find this shows the Hearing Member kept an open mind and hadn’t already decided any issue. She listened to the Claimant’s Legal Representative. She considered the submissions he made. This means she wasn’t biased.

The Hearing Member wasn’t biased for asking a question that she told the Claimant he didn’t have to answer

[21] This case is about misconduct based on the Claimant’s unwillingness to attest to his vaccination status. The Hearing Member at the General Division asked, “did you get the Covid vaccination?”^{Footnote 13} The Claimant asked if he had to answer and the Hearing Member said he didn’t.^{Footnote 14} This is what is now being alleged as bias.

[22] I asked the Claimant’s Legal Representative why he didn’t raise any issue of bias during the hearing. He said he was taken off-guard when the Hearing Member asked the Claimant if he was vaccinated.^{Footnote 15}

[23] After listening to the hearing recording, I don’t find the Hearing Member was biased for asking the question. I don’t find this means that she had pre-decided the issue. She told the Claimant that he didn’t have to answer the question and the hearing moved on.

[24] The facts of the case aren’t really in dispute so it is unknown how this interaction tainted the hearing. Since the Claimant’s Legal Representative didn’t want to make submissions on the issue, I will make a decision based on the record. I don’t find there is anything to suggest that the Hearing Member was biased. The Claimant received a fair hearing process.

The General Division didn’t make an error of law because it considered the full test for misconduct under the Employment Insurance Act

The legal test was properly stated

[25] The Claimant’s Legal Representative now says the sole question for the Appeal Division is whether the General Division didn’t articulate the correct test for misconduct.^{Footnote 16} I can’t accept this argument for the reasons that follow.

[26] The test for misconduct is not contained in the EI Act. That means the General Division had to look at what case law says. The General Division did exactly this.^{Footnote 17}

[27] For misconduct to be found the Claimant must have done something wilful, but no wrongful intent is required. The General Division had to consider whether there was misconduct and whether that led to the Claimant’s suspension.

[28] The Federal Court and Federal Court of Appeal have been extremely clear in numerous cases.^{Footnote 18} The focus is on the employee’s actions and not the employer’s. The General Division correctly considered this argument.^{Footnote 19} This means if an employee disagrees with an action by their employer, there are other avenues to bring their dispute.^{Footnote 20} In this case, the Claimant told the General Division he had filed a grievance against his employer.^{Footnote 21}

Express or implied clause

[29] The Claimant’s Legal Representative argues the General Division didn’t apply the misconduct test correctly. He says the General Division only wanted to look at the employee conduct without looking at the validity of the employment contract or implied and express duties. He argues Lemire requires looking at a totality of the circumstances.

[30] But this isn’t so. The Federal Court of Appeal has clarified that, within the EI context, only the conduct of the employee is considered.^{Footnote 22} Specifically, the reasonableness of the employer’s policy is not what the Tribunal has to focus on.

[31] The Claimant’s Legal Representative argues there was no clause in any employment contract or collective agreement that required vaccination.^{Footnote 23} It is argued this means the employer’s policy wasn’t legal. But, again, the General Division turned its mind to this argument.^{Footnote 24} So, there isn’t a reviewable error here.

[32] The General Division considered the arguments.^{Footnote 25} The General Division decided the employer’s vaccination policy was a condition of employment. It specifically stated, “When the employer implemented this policy as a requirement for all of its employees, this policy became an express condition of the Claimant’s employment.”^{Footnote 26}

[33] The Federal Court and Federal Court of Appeal have also provided guidance on this issue. Cecchetto makes it clear than an employer may unilaterally introduce a vaccination policy without an employee’s consent.^{Footnote 27} It is not within the Tribunal’s authority to decide if the employer breached a term in the collective agreement.^{Footnote 28}

[34] This means the General Division didn’t make a reviewable error in this regard.

The Claimant knew, or should have known, there was a real possibility he could be suspended

[35] The Claimant’s Legal Representative argues the Claimant didn’t believe his employer would suspend him. The General Division considered this and decided the Claimant knew the consequence of not following the employer’s policy. I don’t have the authority to reweigh that evidence. That means there is no reviewable error here.

[36] It wasn’t disputed that the Claimant didn’t follow his employer’s mandatory vaccination policy. The Claimant said he didn’t believe that the employer would follow through on suspending him. Yet, the Claimant testified that he understood that the consequence of not attesting his status was a suspension.^{Footnote 29}

[37] The General Division weighed this evidence. It also considered whether there was a real possibility he would be suspended.^{Footnote 30}

[38] Additionally, the Claimant had a conversation with his manager which was followed up by an email that said the Claimant would be suspended.^{Footnote 31} From the evidence, the General Division concluded the Claimant knew what the consequence of not following his employer’s policy would be.^{Footnote 32} So, the General Division considered the evidence. I can’t reweigh it to come to a different conclusion.

It was clear the Claimant could not carry out his duties owed to his employer

[39] The Claimant’s Legal Representative argues that the General Division’s decision is not complete. He says the General Division had to specifically say the Claimant’s conduct impaired a duty owed to the employer.^{Footnote 33} I disagree. The General Division didn’t make a reviewable error with respect to this issue.

[40] The performance of duties owed to an employer was set out in Mishibinijima by the Federal Court of Appeal.^{Footnote 34} The Federal Court of Appeal in Nelson affirms, “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 35}

[41] But the Federal Court recently clarified, “this does not mean only the ability to perform the tasks of the particular job, but is the broader duty owed to the employer to be able to report for work by complying with the policies and rules in the workplace.”^{Footnote 36}

[42] In previous cases like Lemire, Mishibinijima, or Nelson, the actual conduct of the employee was in question and whether it was considered misconduct. So, for example, in Nelson, the question was whether an employee being intoxicated when not working on a dry reserve was misconduct. This meant there had to be an analysis of whether the conduct in question was misconduct under the EI Act.

[43] But this case isn’t the same. The consequences of failing to attest were set out in the employer’s policy.^{Footnote 37} The policy states that an employee’s failure to attest will result in a leave without pay and their removal to access systems. This means an employee who fails to attest won’t be permitted to work.

[44] The General Division decided the Claimant’s action of not disclosing his vaccination status was wilful and deliberate. The General Division decided the Claimant knew the consequence of not disclosing. The very consequence was that he wouldn’t be allowed to work. This necessarily means the Claimant wasn’t able to carry out his duties to his employer.

[45] It isn't my role to reweigh the evidence. The General Division correctly stated the test for misconduct that has been well accepted by the Federal Court and Federal Court of Appeal.

Conclusion

[46] The General Division didn’t make any reviewable errors.

[47] The appeal is dismissed.