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2
Decision
[1] The appeal is dismissed. The Tribunal disagrees with the Claimant.
[2] The Canada Employment Insurance Commission (Commission) has proven that
the Claimant, XXXXXXXXXX,
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
disqualified from receiving Employment Insurance (EI) benefits.1
Overview
[3] On October 14, 2021, the British Columbia (BC) Provincial Health Officer issued an
order that all persons employed by a regional health board had to be vaccinated against
COVID-19 by October 26, 2021. The Claimant refused to get a vaccine against COVID-19.
He was put on an unpaid leave of absence. He was told he needed to have a first dose of
a vaccine by November 15, 2021 in order to continue his employment. The Claimant still
refused. On November 15, 2021, the Claimant's employment was terminated.
[4] ...
the Claimant lost his job because of misconduct. Because of this, the Commission decided
that the Claimant is disqualified from receiving EI benefits.
[5] The ...
actions in dismissing him violated his contract and was wrong and illegal. He say he did
not lose his employment because of misconduct, but because of a vaccine mandate
requiring him to take dangerous experimental drugs as a condition of his employment.
This is against his collective agreement.
1 Section 30 of the Employment Insurance Act says that claimants who lose their job because of misconduct
are disqualified from receiving benefits.
3
Matter I have to consider first
The Employer is not a party to the appeal
[6] Sometimes the Tribunal sends
they want to be added as a party to the appeal. In this case, the Tribunal sent the
employer such a letter. The employer did not reply to the letter.
[7] To be an added party, the employer must have a direct interest in the appeal. I
have decided not to add the employer as a party to this appeal, as there is nothing in my
file that suggests that my decision would impose any legal obligations on the employer.
My jurisdiction
[8] I recognize that originally, the Claimant was on an unpaid leave of absence (or
suspension) from his employment and applied immediately for benefits. There is a specific
section of the Employment Insurance Act that deals with disentitlements for that reason.2
[9] However, by the time the Commission issued a decision about his benefits, the
Claimant
status. This is maintained in the decision that the Commission made on reconsideration.
[10] My jurisdiction is based on the reconsideration decision. In that decision, the
Commission says that they cannot pay any EI regular benefits starting October 24, 2021,
because the Claimant lost his employment on October 25, 2021, as a result of
misconduct.
[11] So, even though the Claimant was originally on a leave of absence, since the
Commission has only made an initial decision and reconsidered its decision to not pay the
Claimant EI benefits because he was dismissed from his job due to misconduct, I will only
be issuing a decision on the issue of a disqualification because of dismissal3, where the
last day of work was October 24, 2021.
2 This is section 31 of the Employment Insurance Act.
3 This is addressed in section 30 of the Employment Insurance Act.
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Issue
[12] Did the Claimant lose his job because of misconduct?
Analysis
[13] 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?
[14] I find that the Claimant lost his job because he refused to comply with the Provincial
against COVID-19.
[15] The Claimant testified that he was originally put on an unpaid leave of absence on
October 25, 2021. This was because he had refused to get what he believed was a
dangerous, experimental drug. He said the requirements were clear, that employees
should get the shot or be put on a leave of absence, possibly leading to termination. He
understood that from the general email messages that went out and direct talks with his
supervisor and manager.
[16] He says that the supervisor and manager initiated conversations with him because
him to know what
the policy would be going forward. That was that he would be put on a leave of absence
on October 26, 2021. Then, as they got more information and the policy developed, there
would be termination on November 15, 2021.
[17] The Claimant confirmed that he had had meetings with his supervisor and manager
who discussed the policy with him. There was also a termination meeting where the
termination letter was read to him. At that point there was nothing he could say that would
change their minds.
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[18] The Termination Letter dated November 15, 2021,
is being changed from Unpaid Leave to Termination. The letter explains that the Claimant
had been advised by letter on October 25, 2021 that he had to be vaccinated against
COVID-19 in order to work for the provincial health services authority after October 26,
2021. As of November 15, 2021, the employer was not able to confirm that he had
received his dose 1 vaccination against COVID-19. Because of that, his status was
changed from "unpaid leave" to "terminated" effective November2021
[19] The Claimant does not dispute that his employer put him on unpaid leave and then
dismissed him because he did not get the COVID-19 vaccine as required by the provincial
policy. I see no evidence to contradict this, so I find that the Claimant lost his employment
because he did not comply with the provincial health order that employees of health
services had to be vaccinated against COVID-19.
... Is there a reason for the Claimant's dismissal misconduct under the law?
[20] The reason for the Claimant's dismissal is misconduct under the law.
[21] To be misconduct under the law, the conduct has to be wilful. This means that the
conduct was conscious, deliberate, or intentional.4 Misconduct also includes conduct that
is so reckless that it is almost wilful.5 The Claimant doesnot have to have wrongful intent (in
other words, he .... ) for his behaviour to
be misconduct under the law.6
[22] 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.7
4 See Mishibinijima v Canada (Attorney General), 2007 FCA 36.
5 See McKay-Eden v Her Majesty the Queen, A-402-96.
6 See Attorney General of Canada v Secours, A-352-94.
7 See Mishibinijima v Canada (Attorney General), 2007 FCA 36.
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[23] 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.8
[24] The Commission says that there was misconduct because the Claimant knew and
understood that he was on administrative leave without pay because he failed to comply
with the vaccine mandate without an approved medical or religious reason. He still chose
not to comply with the provincial order to get vaccinated.
[25] The Claimant says that there was no misconduct because he lost his employment
not for any negative aspect, but because of the vaccine mandate. He argues he was
wrongly and illegally dismissed and his labour relations officer is grieving the decision.
[26] The Claimant testified that he knew that the provincial health order was in effect
and that it applied to him. He said he considered applying for a religious accommodation,
[27] The Claimant provided a copy of a letter from a lawyer that was sent to the union
president arguing against the provincial order. He explained that this was prepared and
sent before the order of the Provincial health officer was issued and before he was put on
unpaid leave. While he agrees with this letter, he says this was not sent to his employer,
just the union. Although the document provides arguments against the provincial order,
particular situation, I do not
dismissal was due to his own actions.
[28] The Claimant does confirm that there had been emails that had gone out to
everyone about the policy. As it got closer to October 26, 2021, the messages got more
specific. The requirements were clear that all health care workers had to get the shot or
they would be put on a leave of absence and possibly lead to termination. He was aware
of that possibility. His supervisor and manager had talked to him about it.
8 See Minister of Employment and Immigration v Bartone, A-369-88.
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[29] The Claimant also confirmed that even though he knew of the possibility of being
put on a leave of absence, he decided not
force him to take an experimental drug and that this was not in his collective agreement.
[30] The Claimant argues that the requirement to be vaccinated is against his collective
agreement. Compliance with a collective agreement must be arbitrated under the terms of
Claimant has filed a grievance against his employer.
[31] However, I do note that in the collective agreement the Claimant sent the Tribunal
to support his case, there is a clause that specifically says that an employee may be
advised in writing that such a procedure may have an adv
heath.9
Claimant testified that he did not have grounds for a medical exemption.
[32] The Claimant testified that the employer went straight to firing without giving him
any options. He says they could have let him work online from home or required him to do
training or education to keep working. His view is that the employer should have offered
other options to being put on leave.
[33] In cases for a disqualification from receiving EI benefits due to misconduct, the
relevant consideration. 10
[34] The Claimant argues that he had a right to refuse the shot. That is true. However,
that does not exempt him from the consequences of that refusal. In this case, the Claimant
knew that there was a provincial order in place, knew that that order applied to him, knew
9 This is in article 6.01 (a) (ii) of the Provincial Agreement between the Health Science Professionals
submissions at GD2-31.
10 See for example the case of Paradis v. Canada (Attorney General), 2016 FC 1282
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that there was a possibility of being placed on leave and ultimately losing his job if he did
not comply. Knowing all this, he still chose to refuse the vaccine.
[35] In refusing to be vaccinated, under the provincial health order, the Claimant was
required to be placed on an unpaid leave of absence. Because he was on an unpaid leave
of absence, he could not fulfil his obligations to his employer. This meets the criteria of
misconduct for the purposes of the Employment Insurance Act.
[36] I find that the Commission has proven that there was misconduct. The Claimant
was dismissed because he failed to comply with a provincial health order that he was
subject to. He did not get vaccinated against COVID-19. He knew of the order and knew
the consequences of not complying, but he chose to refuse the vaccine anyway. This was
a deliberate decision. As a result, I find that the Claimant lost his job because of his
misconduct and is disqualified fro receiving EI benefits.
So, did the Claimant lose his job because of misconduct?
[37] Based on my findings above, I find that the Claimant lost his job because of
misconduct.
Conclusion
[38] The Commission has proven that the Claimant lost his job because of misconduct.
Because of this, the Claimant is disqualified from receiving EI benefits.
[39] This means that the appeal is dismissed.
XXXXXXXXXXX
Member, General Division Employment Insurance Section