MM v Canada Employment Insurance Commission

MM v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2022-12-21 Neutral citation 2022 SST 1796 Reference number GE-22-3322 Member Gerry McCarthy Division General Division Decision Appeal dismissed Related decisions SST - MM v Canada Employment Insurance Commission - 2023 SST 1046 - 2023-08-03 - Appeal Division SST - MM v Canada Employment Insurance Commission - 2023 SST 1851 - 2023-12-28 - General Division Subjects EI - Denied for misconduct - Non-compliance to vaccination policy Decision Content Citation: MM v Canada Employment Insurance Commission, 2022 SST 1796 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant (Claimant): M. M. Respondent (Commission): Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (535332) dated September 8, 2022 (issued by Service Canada) Tribunal member: Gerry McCarthy Type of hearing: Videoconference Hearing date: December 6, 2022 Hearing participant: Appellant Decision date: December 21, 2022 File number: GE-22-3322 On this page Decision Overview Issue Analysis Conclusion Decision [1] The appeal is dismissed. [2] The Canada Employment Insurance Commission (Commission) has proven that the Claimant lost his job because of misconduct (in other words, because he did something that caused him to lose his job). This means the Claimant is disqualified from receiving Employment Insurance (EI) benefits from March 13, 2022.Footnote 1 Overview [3] The Claimant worked as a Transit Operator and lost his job on December 2, 2021. The Claimant’s employer (“The City of Brampton”) said the Claimant was initially suspended and then let go because he didn’t comply with their vaccination policy (directive). [4] The Commission accepted the employer’s reason for the dismissal. It decided that the Claimant lost his job because of misconduct. Because of this, the Commission decided the Claimant was disqualified from receiving EI benefits from March 13, 2022. [5] The Commission says the Claimant was made aware that failing to comply with the employer’s vaccination policy would result in a loss of employment. [6] The Claimant says he was unwilling to disclose his Covid-19 testing status to the employer because of a previous privacy breach that was never resolved. The Claimant further says the employer violated his collective agreement. Issue [7] Did the Claimant lose his job because of misconduct? Analysis [8] To answer the question of whether the Claimant lost his job because of misconduct, I have to decide two things. First, I have to determine why the Claimant lost his job. Then, I have to determine whether the law considers that reason to be misconduct. Why did the Claimant lose his job? [9] I find the Claimant lost his job because he didn’t comply with the employer’s vaccination policy. [10] The Commission says the reason the employer gave is the reason for the dismissal. The employer told the Commission that the Claimant was dismissed because he didn’t comply with their vaccination policy. Specifically, the employer told the Commission the Claimant failed to comply with the weekly Covid-19 testing. [11] The Claimant doesn’t dispute that he was dismissed because he didn’t comply with the employer’s vaccination policy. However, the Claimant says he was unwilling to disclose the results of weekly Covid-19 testing to the employer because of a previous privacy breach that was never resolved. [12] I find the Claimant was dismissed because he failed to comply with the employer’s vaccination policy. Specifically, the Claimant failed to comply with the weekly Covid-19 testing. Is the reason for the Claimant’s dismissal misconduct under the law? [13] The reason for the Claimant’s dismissal is misconduct under the law. [14] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.Footnote 2 Misconduct also includes conduct that is so reckless that it is almost wilful.Footnote 3 The Claimant 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.Footnote 4 [15] There is misconduct if the Claimant 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 because of that.Footnote 5 [16] The Commission has to prove that the Claimant lost his job because of misconduct. The Commission has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that the Claimant lost his job because of misconduct.Footnote 6 [17] The Commission says there was misconduct because the Claimant knew or ought to have known that failing to comply with the employer’s vaccination policy could result in a loss of employment. [18] The Claimant says there was no misconduct because the employer could have made some type of accommodation with him on the Covid-19 testing. [19] I find the Commission has proven there was misconduct, because they showed the Claimant agreed with the information provided by the employer (S. M.) about the vaccination policy and the consequences for failing to comply with the policy or directive (GD3-25 and GD3-22). Furthermore, the Commission provided a copy of the employer’s vaccination directive and the consequences for failing to comply (GD3-40). I realize the Claimant testified that the employer could have made some type of accommodation with him on the Covid-19 testing. However, the matter of determining whether the employer’s policy was fair or reasonable wasn’t within my jurisdiction. In short, other avenues existed for Claimant to make these arguments.Footnote 7 Additional Testimony and Submissions from the Claimant [20] I realize the Claimant testified that he had no objections to weekly Covid-19 testing. However, the Claimant explained he didn’t want to disclose his Covid-19 testing status to the employer because of a previous privacy breach that was never resolved. I recognize the Claimant was frustrated about a previous privacy breach. Still, the only issue before me is whether the Claimant lost his job because of misconduct. On this matter, I must apply the law. In other words, I cannot ignore the law even in the most sympathetic cases.Footnote 8 [21] The Claimant further argued that he was unlawfully terminated by the employer. The Claimant also wrote that the employer violated his collective agreement. However, as mentioned the matter of determining whether the employer’s policy was fair or reasonable wasn’t within my jurisdiction.Footnote 9 [22] Finally, the Claimant explained that the employer eventually dropped their vaccination directive in 2022. Still, the only issue before me was whether the Claimant lost his job on December 2, 2021, because of misconduct. As previously mentioned, I must apply the law on this matter and cannot ignore the law even for sympathetic reasons. So, did the Claimant lose his job because of misconduct? [23] Based on my findings above, I find the Claimant lost his job because of misconduct. Conclusion [24] The Commission has proven the Claimant lost his job because of misconduct. Because of this, the Claimant was disqualified from receiving EI benefits. [25] This means the appeal is dismissed. Footnotes Footnote 1 Section 30 of the Employment Insurance Act says that claimants who lose their job because of misconduct are disqualified from receiving benefits. Footnote 2 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 3 See McKay-Eden v Her Majesty the Queen, A-402-96. Footnote 4 See Attorney General of Canada v Secours, A-352-94. Footnote 5 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 6 See Minister of Employment and Immigration v Bartone, A-369-88. Footnote 7 Paradis v Canada (Attorney General), 2016 FC 1281. Footnote 8 Knee v Canada (Attorney General), 2011 FCA 301. Footnote 9 Paradis v Canada (Attorney General), 2016 FC 1281.