Increasingly more appeals are being allowed by the Social Security Tribunal for people who were denied Employment Insurance benefits when they were dismissed from work due to vaccination policies
Here's why. All those many who were - now we know it - unfairly denied EI benefits, may now apply for reconsideration. Just don't do the same mistake as those who lost their appeals...
NOTE:
You may wish to bookmark this page, as I plan to add here more examples from the new successful cases that will be posted by SST. There’s about three months lag between when case are decided upon and when they are published on SST site. Currently, SST has published cases up to January 2023.
You can also always search for related cases yourself at Official SST site: https://decisions.sst-tss.gc.ca/sst-tss/en/d/s/index.do?cont=vaccination
Preamble:
Increasing more appeals are being allowed by the Social Security Tribunal (SST) of Canada for Canadians who were denied Employment Insurance benefits when they were placed on Leave Without Pay (LWOP) by their employers because of COVID vaccination policies. More exactly, 29 (out of 365 posted on SST website as of January 2023), with the majority of which being in the last four months.
Now, I’m hearing many more successful appeals are coming, as more and more facts and successful cases are appearing every month. There are also many portals that provide guidance on how to prepare your EI denial decision appeal. Here’s one of them: https://sites.google.com/view/open-canada/self-help/ei
Most common mistake that many Appellants made was blaming their Employers for their decisions to introduce the Vaccination policy or calling into question the scientific, legal or ethical validity of this policy. SST is not the place that decides on such matters. Its role is solely to see whether YOU have done anything wrong, whether YOUR OWN actions can give grounds to call it MISCONDUCT. So this is what you have to focus on!
So, Lets review now some of the points that convinced independent SST judges that the EI commission’s decision to deny EI for people who were placed on LWOP because of their vaccination status (or their decision to not disclose their vaccination status) was wrong.
GE-22-1889 (January 16, 2023)
Decision
[1] The appeal is allowed. The Tribunal agrees with the Claimant.
[2] The Canada Employment Insurance Commission (Commission) hasn’t proven that the Claimant lost her job because of misconduct (in other words, because she did something wrong that caused her to lose her job). This means that the Claimant isn’t disqualified from receiving Employment Insurance (EI) benefits.Footnote1
Overview
[3] The Claimant was both suspended from and ultimately lost her job. The Claimant’s Employer says that she was let go because she decided not to get vaccinated for Covid-19 as was required by her Employer’s vaccination policy.
[4] Even though the Claimant doesn’t dispute that this happened, she says that despite her Employer’s vaccination policy, her decision to not be vaccinated isn’t misconduct.
[5] The Commission accepted the employer’s reason for the dismissal. It determined that the Claimant lost her job because of misconduct. Because of this, the Commission decided to disqualify the Claimant from receiving EI benefits.
I will accept documents sent in after the hearing
[6] The Claimant’s representative sent additional submissions to the Tribunal just prior to the hearing and after the hearing. Since these documents were referred to during the hearing, I will accept them. The Commission was afforded a reasonable amount of time to review the Claimant’s submissions and did respond with additional representations of its own.
Issue
[7] Did the Claimant lose her job because of misconduct?
Analysis
…
[12] The Claimant does not dispute the reason for her forced leave of absence or her dismissal. She admitted that she did not get vaccinated but says she had a good reason for not doing so.
Was there a breach on an expressed or implied duty arising out of her employment contract?
[29] I find that the Commission hasn’t proven that there was a breach of either an expressed or implied duty for the Claimant to get vaccinated arising out of her employment contract despite the Employer’s Covid-19 vaccination policy.
[31] An employment contract is just that, a contract. It is an agreement between parties that details the obligations both parties owe each other. Neither can unilaterally impose new conditions to the collective agreement without consultation and acceptance of the other. The only exception to this is where legislation demands a specific action by an employer and compliance by an employee.
[32] The Claimant is a unionized employee and works under a collective agreement between her Bargaining Agent, the Canadian Union of Public Employees (CUPE), and the Employer.
[34] The Claimant both submitted and testified that the reason she did not get vaccinated was because she has a health condition. She testified that she had cancer as a child, and had had negative reactions to anesthetic during surgery. She attended a Covid-19 education session and spoke with several doctors about the vaccines. She conducted her own research. She decided that there was insufficient information available to give her confidence that she would not have negative consequences from taking the vaccine. She elected to wait until there was more definite information concerning the safety of the vaccines.
[35] She says that she and others submitted their concerns to Employer and Union (Bargaining Agent) regarding the vaccines but received no response. A subsequent correspondence from the Claimant to the Employer suggested alternative options to vaccination such as continuing to submit to Covid-19 infection testing and other protective protocols. The Employer rejected these options and it maintained its requirement for vaccination or authorized exemption.
Is there an expressed duty arising out of her employment contract?
[36] I find that the Commission has not shown that there is an expressed duty detailed in the Claimant’s CA that would support an obligation upon the Claimant was to get vaccinated against Covid-19.
[37] An expressed duty is something specifically noted in an employment contract or of such a fundamental nature, it is obvious that it exists. In other words, the employment agreement would need to contain an explicit expectation that the Claimant be vaccinated against specific ailments and that the Claimant, or her bargaining agent agreed to the requirement at her hiring or some time later during her employment prior to her dismissal.
Rights of the Claimant
[72] The Claimant was clear that she was not defying her employer by choosing not to get vaccinated but simply expressing her interest in protecting her health. She says that she did nothing wrong that warranted dismissal and her actions are not misconduct under the Act. She raises the allegation that the Employer failed to accommodate the security of her bodily integrity, according to law. She added that she attempted to maintain her job by proposing options such as continuing with testing and other transmission limiting protocols, but the Employer rejected her offer.
[73] Again, it is not the Employer’s actions that are in question. But the Claimant raises a valid point concerning her right to bodily integrity.
[74] As I noted above, there is no Federal or Provincial legislation that demands Covid-19 vaccination and therefore vaccination against Covid-19 remains voluntary.
[75] It is both well founded and long recognized in Canadian common law that an individual has the right to control what happens to their bodies. The individual has the final say in whether they accept any medical treatment.
[76] The common law confirms that the Claimant has a legal basis or “right” to not accept any medical treatment, which includes vaccination. If vaccination is therefore voluntary, it follows that she has a choice to accept or reject it. If she exercises a right not to be vaccinated, then it challenges the conclusion that her actions can be characterized as having done something “wrong” or “something she should not have done,” whether willfully or not, that would support misconduct and
disqualification within the meaning of the EI Act?
[77] Even the Claimant’s employment contract (CA) acknowledges that she has the right to refuse any recommended or required vaccination.
[78] The issue of the Covid-19 vaccinations and dismissals resulting from non-compliance is an emerging issue. No specific case law currently exists on the matter that guides decision makers.
[79] Indeed, I could not find a single case where a claimant did something for which a specific right, supported in law, exists, and subsequently that action was still found to be misconduct simply because it was deemed willful.
[80] In the absence of a FCA decision that provides such guidance, I am persuaded that the Claimant has a right to choose whether to accept any medical treatment. Despite that fact that her choice contradicts her Employer’s policy, and led to her dismissal, I find that exercising that “right” cannot be characterized as a wrongful act or undesirable conduct sufficient to conclude misconduct worthy of the punishment of disqualification under the EI Act.
So, did the Claimant lose her job because of misconduct?
[81] Based on my findings above, I find that the Claimant did not lose her job because of misconduct.
[82] This case is not about whether the Employer’s policy is legal or reasonable nor whether its decision to dismiss the Claimant is justified. The issue is whether the Claimant’s decision not to be vaccinated, despite the Employer’s policy, supports a conclusion of misconduct. The courts have detailed the test to make that determination and it is upon the Commission to prove the elements.
[83] The Commission has not met the burden of proof to establish that the Claimant breached an expressed or implied duty arising out of her employment agreement.
[84] Further, the Claimant had a right both expressed in Canadian case law and detailed in Article 19.02 of her collective agreement to refuse vaccination.
GE-22-3307 (Decision: 2023-01-13)
[4] Even though the Claimant doesn’t dispute that this happened, she says that she wasn’t warned that she would be dismissed for it. The employer had consistently stated that employees would be put on leave if they didn’t follow the vaccination policy. The Claimant was still considering whether to get vaccinated when the deadline to provide proof of vaccination passed and the employer dismissed her.
Is the reason for the Claimant’s dismissal misconduct under the law?
[12] The reason for the Claimant’s dismissal isn’t misconduct under the law.
[13] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional. Misconduct also includes conduct that is so reckless that it is almost wilful. The Claimant doesn’t have to have wrongful intent (in other words, she doesn’t have to mean to be doing something wrong) for her behaviour to be misconduct under the law.
[14] There is misconduct if the Claimant 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.
[20] The Claimant testified that she had several discussions with her direct supervisor and the employer’s Human Resources (HR) representative about the policy. She had concerns about the safety of the vaccine and told them that she was not vaccinated but was considering getting the vaccine.
GE-22-829 (Decision date: 2022-09-20)
Appeal allowed (claimant did not know he could be terminated, did not brake employer's directions, conduct not reckless)
Also available at JCCF site: https://www.jccf.ca/wp-content/uploads/2022/09/General-Division-EI-Decision.pdf
The Canada Employment Insurance Commission (Commission) has not 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 that the Claimant is not disqualified from receiving Employment Insurance (EI) benefits.1
[32] Second, I find that the Claimant did not know and could not have known the consequences of non compliance would lead to his dismissal. In fact, the employer told him that if he did not want to comply, he could quit his job. As well, the IDEL leave documents provided to him do not say that he would be dismissed from his employment.
[34] I acknowledge that the employer may have the authority to develop and impose policies at the workplace, however employees ought to be given a chance to understand the policy, to know what is required, to have an opportunity to review and/or ask questions and be given enough to time to comply.
[35] Lastly, I cannot find that the Claimant’s conduct was wilful misconduct in this case. He did not consciously, deliberately, or intentionally breach the employer’s verbal direction. Also, his conduct was not reckless. He simply was not provided with enough time to comply and could not have known he would be dismissed for his conduct.
[36] The Claimant raised other arguments to support his position. Some of them included the following:
a) He had high blood pressure and his employer knew about it
b) The employer did not accommodate him
c) The employer changed the terms of his contract
d) He cannot be forced to undergo a medical and experimental procedure
[37] The court has said that the Tribunal cannot determine whether the dismissal or penalty was justified. It has to determine whether the Claimant's conduct amounted to misconduct within the meaning of the EI Act. I have already decided that the Claimant’s conduct does not amount to misconduct based on the EI Act
[38] I acknowledge the Claimant’s additional arguments, but I do not have the authority to decide them. The Claimant’s recourse is to pursue an action in court, or any other Tribunal that may deal with his particular arguments. I note that the Claimant testified that he recently came to a settlement with his former employer about his case.
GE-22-786:
Appeal allowed ( not disclosing his vaccination status )
Canadian man terminated for not disclosing his vaccination status , which was labelled misconduct,. he was denied Employment Insurance over COVID-19 vaccination policy, and wins the appeal in tribunal.
The social security tribunal (SST) has overturned a man’s denial of employment insurance benefits for misconduct related to his termination over his company’s covid-19 vaccination policy.
In the ruling, the social security tribunal adjudicator determined that Employment Insurance failed to prove there was misconduct because it did not meet the onus of proving two of the four elements for misconduct.
What is very important to note about this case is that the adjudicator clearly states, “Even though the failure to disclose vaccination status was the cause of dismissal, that does not by itself establish misconduct for employment insurance purposes.”
[1 ] The appeal is allowed. The Tribunal agrees with the Claimant.
[2] The Canada Employment Insurance Commission (Commission) hasn't 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 that the Claimant isn't disqualified from receiving Employment Insurance (EI) benefits."
[3] The Claimant lost his job. The Claimant's employer said that he was let go because he refused to disclose his vaccination status, as required by the employer's new COVID-19 vaccination policy (Policy).
[24] I find that the Commission hasn't proven that there was misconduct, because it did not meet the onus of proving two of the four elements of misconduct. The Commission had to prove all four in order to succeed. In coming to this conclusion, I am mindful that it is the actions of the Claimant that are relevant, and whether they amount to misconduct for El purposes. The issue is not whether the employer was guilty of misconduct in engaging in wrongful dismissal.10 It is not the role of the Tribunal to determine whether the dismissal was justified, or was the appropriate sanction. 11
[25] With respect to the first element, whether the Claimant's actions were wilful (conscious, deliberate, intentional), the evidence is clear. He did not disclose his vaccination status to the employer. He did answer the employer's survey, checking the option "prefer not to say". He thought that the employer did not have a right to know his vaccination status. He provided no further information on his vaccination status. On that evidence, the Claimant's non-disclosure of his status was wilful.
[26] The next element of misconduct is whether the Claimant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer. I find that the Commission fails to meet the onus of proof for this element. The problem lies with the Policy, and with the nature of the Claimant's work for the employer. [...]
The Policy provided that the employer could implement alternative measures if an employee refused to disclose whether they were vaccinated or not. The five listed measures were not exhaustive. Three of the measures involved the employee continuing to work in a different capacity.
[27] The Commission did not consider the nature of the Claimant's work in assessing whether the Claimant's non-compliance with the Policy would interfere with carrying out his duties to the employer. The Commission had some information about the nature of the Claimant's work, but did not follow up to obtain a clear picture of how non compliance might interfere with his duties to the employer.
[28] The difficulties in the Policy, and the nature of the Claimant's work, lead me to conclude that the Commission has not met the onus of proving this element.
[29] The third element of misconduct is whether the Claimant knew or should have known that there was a real possibility of being let go because of not complying with the Policy. I find that the Commission fails to meet the onus of proof for this element as well. The employer's statement (GD3-26) that the email enclosing the policy stated that non-adherence will result in termination is not true.
[31] The fourth element of misconduct is that the alleged misconduct caused the termination of the employment. I find that the Commission has proven this element. … I find that the Claimant's non-disclosure of his vaccination status was the cause of the termination of his employment. Even though the failure to disclose was the cause of the dismissal, that does not by itself establish misconduct for El purposes. The Commission had to prove all four elements, and has not done so.