LP v Canada Employment Insurance Commission

LP v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2023-09-13 Neutral citation 2023 SST 1980 Reference number GE-23-710 Member Catherine Shaw Division General Division Decision Appeal dismissed Related decisions SST - LP v Canada Employment Insurance Commission - 2024 SST 1025 - 2024-08-23 - General Division SST - LP v Canada Employment Insurance Commission - 2024 SST 1244 - 2024-10-15 - Appeal Division SST - LP v Canada Employment Insurance Commission - 2024 SST 217 - 2024-03-05 - Appeal Division Subjects EI - Denied for misconduct - Non-compliance to vaccination policy Decision Content Citation: LP v Canada Employment Insurance Commission, 2023 SST 1980 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: L. P. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (565772) dated February 10, 2023 (issued by Service Canada) Tribunal member: Catherine Shaw Type of hearing: In person Hearing date: September 11, 2023 Hearing participant: None Decision date: September 13, 2023 File number: GE-23-710 On this page Decision Overview Matter I have to consider first Issue Analysis Conclusion Decision [1] The appeal is dismissed. The Tribunal disagrees with the Appellant. [2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant was suspended from her job because of misconduct (in other words, because she did something that caused her to be suspended). For this reason, she is disentitled to Employment Insurance (EI) benefits. Overview [3] The Appellant was suspended from her job.Footnote 1 The Appellant’s employer says that she was suspended because she went against its vaccination policy: she didn’t get vaccinated against COVID-19. [4] Even though the Appellant doesn’t dispute that this happened, she says that going against her employer’s vaccination policy isn’t misconduct. [5] The Commission accepted the employer’s reason for the suspension. It decided that the Appellant was suspended because of misconduct.Footnote 2 Because of this, the Commission decided that the Appellant is disentitled from receiving EI benefits. Matter I have to consider first The employer is not a party to the appeal [6] The Tribunal identified the Appellant’s former employer as a potential added party to the Appellant’s appeal. The Tribunal sent the employer a letter asking if they had a direct interest in the appeal and wanted to be added as a party. The employer did not respond by the date of this decision. As there is nothing in the file that indicates the employer has a direct interest in the appeal, I have decided not to add them as a party to this appeal. The Appellant wasn’t at the hearing [7] The Appellant wasn’t at the hearing. A hearing can go ahead without the Appellant if they got the notice of hearing.Footnote 3 [8] I think that the Appellant got the notice of hearing because it was sent to the email address she gave to the Tribunal. There was no indication that the email didn’t get delivered. An email was also sent to the Appellant the day before her hearing, reminding her about the hearing time and location. [9] I am satisfied the Appellant got the notice of hearing. So, the hearing took place as scheduled, without the Appellant. Issue [10] Was the Appellant suspended from her job because of misconduct? Analysis [11] The law says that you can’t get EI benefits if you lose your job because of misconduct. This applies when the employer has let you go or suspended you.Footnote 4 [12] To answer the question of whether the Appellant was suspended from her job because of misconduct, I have to decide two things. First, I have to determine why the Appellant was suspended. Then, I have to determine whether the law considers that reason to be misconduct. Why was the Appellant suspended? [13] Both parties agree that the Appellant was placed on unpaid leave (suspended) from her job because she went against the employer’s vaccination policy. I see no evidence to contradict this, so I accept it as fact. Is the reason for her suspension misconduct under the law? [14] The reason for the Appellant’s suspension is misconduct under the law. [15] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.Footnote 5 Misconduct also includes conduct that is so reckless that it is almost wilful.Footnote 6 The Appellant doesn’t have to have wrongful intent (in other words,s he doesn’t have to mean to be doing something wrong) for her behaviour to be misconduct under the law.Footnote 7 [16] 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 because of that.Footnote 8 [17] The Commission has to prove that the Appellant lost her 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 Appellant lost her job because of misconduct.Footnote 9 [18] I only have the power to decide questions under the Act. I can’t make any decisions about whether the Appellant has other options under other laws. Issues about whether the Appellant was wrongfully dismissed or whether the employer should have made reasonable arrangements (accommodations) for the Appellant aren’t for me to decide.Footnote 10 I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act. [19] There is a case from the Federal Court of Appeal (FCA) called Canada (Attorney General) v McNamara.Footnote 11 Mr. McNamara was dismissed from his job under his employer’s drug testing policy. He argued that he should not have been dismissed because the drug test was not justified under the circumstances, which included that there were no reasonable grounds to believe he was unable to work in a safe manner due to the use of drugs, and he should have been covered under the last test he’d taken. Basically, Mr. McNamara argued that he should get EI benefits because his employer’s actions surrounding his dismissal were not right. [20] In response to Mr. McNamara’s arguments, the FCA stated that it has consistently found that the question in misconduct cases is, “not to determine whether the dismissal of an employee was wrongful or not, but rather to decide whether the act or omission of the employee amounted to misconduct within the meaning of the Act.” The Court went on to note that the focus when interpreting and applying the Act is, “clearly not on the behaviour of the employer, but rather on the behaviour of the employee.” It pointed out that there are other remedies available to employees who have been wrongfully dismissed, “remedies which sanction the behaviour of an employer other than transferring the costs of that behaviour to the Canadian taxpayers” through EI benefits. [21] A more recent decision following the McNamara case is Paradis v Canada (Attorney General).Footnote 12 Like Mr. McNamara, Mr. Paradis was dismissed after failing a drug test. Mr. Paradis argued that he was wrongfully dismissed, the test results showed that he was not impaired at work, and the employer should have accommodated him in accordance with its own policies and provincial human rights legislation. The Federal Court relied on the McNamara case and said that the conduct of the employer is not a relevant consideration when deciding misconduct under the Act.Footnote 13 [22] Another similar case decided by the FCA is Mishibinijima v Canada (Attorney General).Footnote 14 Mr. Mishibinijima lost his job for reasons related to an alcohol dependence. He argued that, because alcohol dependence has been recognized as a disability, his employer was obligated to provide an accommodation. The Court again said that the focus is on what the employee did or did not do, and the fact that the employer did not accommodate its employee is not a relevant consideration.Footnote 15 [23] These cases are not about COVID-19 vaccination policies; however, the principles in these cases are still relevant. In a very recent decision, which did relate to a COVID-19 vaccination policy, the Appellant argued that his questions about the safety and efficacy of the COVID-19 vaccines and the antigen tests were never satisfactorily answered. He also said that no decision maker had addressed how a person could be forced to take an untested medication or conduct testing when it violates fundamental bodily integrity and amounts to discrimination based on personal medical choices.Footnote 16 [24] In dismissing the case, the Federal Court wrote: While the Applicant is clearly frustrated that none of the decision-makers have addressed what he sees as the fundamental legal or factual issues that he raises…the key problem with the Applicant’s argument is that he is criticizing decision-makers for failing to deal with a set of questions they are not, by law, permitted to address.Footnote 17 [25] The Court also wrote: The [Social Security Tribunal’s General Division], and the Appeal Division, have an important, but narrow and specific role to play in the legal system. In this case, that role involved determining why the Applicant was dismissed from his employment, and whether that reason constituted “misconduct.”Footnote 18 [26] Case law makes it clear that my role is not to look at the employer’s conduct or policies and determine whether they were right in suspending the Appellant. Instead, I must focus on what the Appellant did or did not do and whether that amounts to misconduct under the Act. What the Commission and the Appellant say [27] The Commission and the Appellant agree on the key facts in this case. The key facts are the facts the Commission must prove to show the Appellant’s conduct is misconduct within the meaning of the Act. [28] The Commission says that there was misconduct because: the employer had a vaccination policy and communicated that policy to the Appellant the employer’s policy required the Appellant to be fully vaccinated against COVID-19 the Appellant knew what she had to do under the policy she also knew that her employer could suspend her under the policy if she didn’t get vaccinated before the deadline she made a personal choice not to get vaccinated by the deadline her employer suspended her because she didn’t comply with its vaccination policy [29] The Appellant says that there was no misconduct because: She didn’t agree to being placed on leave without pay. The employer placing her on leave without her request violates the law. she was working remotely and wasn’t a health or safety threat to others in the workplace by not being vaccinated. the vaccination requirement was suspended in June 2022 the vaccines weren’t adequately tested and didn’t protect people from transmission of COVID-19 [30] The evidence in this appeal is consistent and straightforward. The Appellant knew what she had to do under the vaccination policy and what would happen if she didn’t follow it. The employer told the Appellant about the requirements and the consequences of not following them. [31] The employer has a right to manage their daily operations, which includes the authority to develop and implement policies at the workplace. When the employer implemented this policy as a requirement for all of its employees, this policy became an express condition of the Appellant’s employment.Footnote 19 [32] I don’t have the legal authority (in law we call this “jurisdiction”) to decide on some of the arguments the Appellant advanced. Specifically: whether the employer had the right to place her on leave without pay under the provisions of her collective agreement; and whether the employer’s policy went against the law, violated her right to privacy, and violated her human rights. [33] In Canada, there are a number of laws that protect an individual’s rights, such as the right to privacy or the right to equality (non-discrimination). The Charter is one of these laws. There is also the Canadian Bill of Rights, the Canadian Human Rights Act, and a number of provincial laws that protect rights and freedoms. [34] These laws are enforced by different courts and tribunals. [35] This Tribunal is allowed to consider whether a provision of the Employment Insurance Act or its regulations (or related legislation) infringes rights that are guaranteed to a claimant by the Charter. [36] But this Tribunal is not allowed to consider whether an action taken by an employer violates a claimant’s Charter fundamental rights. This is beyond my jurisdiction. Nor is the Tribunal allowed to make rulings based on the Canadian Bill of Rights or the Canadian Human Rights Act or any of the provincial laws that protect rights and freedoms. [37] The Courts have said when I decide misconduct appeals, I shouldn’t consider whether an employer’s policy or the penalty it imposed on an employee is reasonable or legal under an employment contract, a collective agreement, or laws such as human rights laws.Footnote 20 [38] The Appellant may have other recourse to pursue her claims that the employer’s policy violated her rights. But, these matters must be addressed by the correct court or tribunal. They are not within my jurisdiction to decide. The Commission has proven she was suspended for misconduct [39] I find that the Commission has proven that the Appellant was suspended for misconduct because it has shown: the employer had a vaccination policy that said employees had to be vaccinated against COVID-19 the Appellant knew about the vaccination policy and what the employer expected of its employees in terms of being vaccinated she knew that the employer could suspend her if she didn’t get vaccinated before the deadline she consciously, deliberately, and intentionally made a personal decision not to get vaccinated by the deadline she was suspended from her job because she didn’t comply with the employer’s vaccination policy So, was the Appellant suspended because of misconduct? [40] Based on my findings above, I find that the Appellant was suspended from her job because of misconduct. [41] This is because the Appellant’s actions led to her suspension. She acted deliberately. She knew that failing to get vaccinated was likely to cause her to be suspended. Conclusion [42] The Commission has proven that the Appellant was suspended from her job because of misconduct. Because of this, the Appellant is disqualified from receiving EI benefits. [43] This means that the appeal is dismissed. Footnotes Footnote 1 The Claimant’s employer put her on an unpaid leave of absence from work. Since the employer initiated the Claimant’s separation from employment, this is considered a suspension. Footnote 2 Section 30 of the Employment Insurance Act (Act) says that claimants who lose their job because of misconduct are disqualified from receiving benefits. Footnote 3 Section 58 of the Social Security Tribunal Rules of Procedures sets out this rule. Footnote 4 See sections 30 and 31 of the Act. Footnote 5 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 6 See McKay-Eden v Her Majesty the Queen, A-402-96. Footnote 7 See Attorney General of Canada v Secours, A-352-94. Footnote 8 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 9 See Minister of Employment and Immigration v Bartone, A-369-88. Footnote 10 See Canada (Attorney General) v McNamara, 2007 FCA 107. Footnote 11 See Canada (Attorney General) v McNamara, 2007 FCA 107. Footnote 12 See Paradis v Canada (Attorney General), 2016 FC 1282. Footnote 13 See Paradis v Canada (Attorney General), 2016 FC 1282 at para. 31. Footnote 14 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 15 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 16 See Cecchetto v Attorney General of Canada, 2023 FC 102, at paragraphs 26 and 27. Footnote 17 Cecchetto v Attorney General of Canada, 2023 FC 102, at paragraph 32. Footnote 18 Cecchetto v Attorney General of Canada, 2023 FC 102, at paragraph 47. Footnote 19 See Canada (Attorney General) v Lemire, 2010 FCA 314. Footnote 20 See Canada (Attorney General) v Marion, 2002 FCA 185.