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Misconduct Definition & Meaning - Merriam-Webster
https://www.merriam-webster.com/dictionary/misconduct
Definition of misconduct
1: mismanagement especially of governmental or military responsibilities
2: intentional wrongdoing
specifically: deliberate violation of a law or standard especially by a government official: Malfeasance
3a: improper behavior b: Adultery
4: a penalty (as in ice hockey) for improper behavior or abusive language (toward an official)
Definition of misconduct - Blacks Law Dictionary:
https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf
“Misconduct: A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.”
Definition of Misconduct – Social Service Canada Website
https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/digest/chapter-7/solution.html#a7_2_5
“The word misconduct is not defined in the legislation…It is therefore a question of law. Over the years, jurisprudence has made a number of clarifications to the interpretation of the word "misconduct". In general, misconduct refers to ill-intentioned actions by an employee; actions that are incompatible with the reliable and suitable carrying out of the duties for which the employee was hired. These are actions that result in the person who worked for an employer and committed these infractions, no longer meeting the expressed or implicit conditions of employment or work. Misconduct is identified as losing a drivers license, refusing to work specific shifts, accused of absenteeism or lateness, safety violation/damage to a machine, inappropriate dress/uniform/appearance, theft, using alcohol or drugs, committing an act of violence or inappropriate behavior, or being involved in a criminal offence. Sometimes an employee, despite their best efforts, is unable to do a job and is dismissed. This is not considered misconduct. A genuine lack of skill, aptitude or ability does not suggest a deliberate action that reflects wilful behaviour… dismissal does not automatically translate into misconduct under the EI Act. Care must be taken to ensure that a decision to deny benefits is not taken solely on an employer’s assurance that the conduct in question is misconduct, or exclusively on the employer’s subjective appreciation of the events.”
Definition of Misconduct – Employment Insurance Website
https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/fired-misconduct.html
“Misconduct refers to any inappropriate action, offence, or professional fault committed
willingly or deliberately by a person while working for an employer. Misconduct occurs when
an employee's behaviour is in violation of the obligations set out in his contract of employment and when, under normal circumstances, the employee should have known that the actions, omissions or faults could result in a dismissal... The following actions or omissions are considered to be the most frequent situations of misconduct: Absence without notification, Absence without justification, Absence without Permission, Tardiness, Insubordination—refusal, disobedience, Refusal to perform certain duties, Refusal to carry out an order or instruction, Refusal to work overtime, Hostile behaviour, Disrespectful conduct, Acts of violence, Breach of rules, Dress and appearance, Unlawful union activities, Safety rules, Consumption of alcoholic beverages or drugs, Dereliction of duty, Criminal offences. We can conclude that there is no misconduct when the reason for the dismissal is due to incompetence, unsatisfactory performance, inaptitude to perform certain duties or inexperience, unless these actions, omissions or faults are done wilfully or are the result of unwillingness.”
There were no actions taken on my part of any sort of misconduct. I followed all procedures in the accommodation process. I attested to my vaccination status before the due date, I watched the online training video by Canada School of Public Service as requested and I answered all the additional questions asked by management without any hesitation. I am not unwilling to be vaccinated, I am unable to be vaccinated due to my religious convictions. My employer requested me to perform a duty that was not part of my collective agreement nor legally required.
Digest of Benefit Entitlement Principles: 7.2.4 Elements to consider in a finding of misconduct:
To establish misconduct, it must be shown
(a) that the conduct in question constituted a breach of the employer-employee relationship;
(b) that the conduct was wilful;
(c) that there was a causal relationship between the alleged conduct and the dismissal;
(d) that the alleged misconduct was not a mere excuse or pretext for the dismissal.
Therefore the documented facts must establish that:
there was a specific incident which served as a breaking point where the employee’s conduct resulted in loss of employment (dismissed or suspended);
the conduct had a material and adverse effect on the employer;
the conduct constituted a breach in the employer-employee relationship;
the action was wilful and/or intentional on the part of the claimant; and
the conduct was the real reason for the loss of employment and not an excuse or pretext.
The term conduct in this context refers to personal behaviour. Conduct can be an action or omission but is always voluntary. Conduct does not mean good or bad behaviour. It only means that the behaviour is intentional and not forced by external influence. Conduct is a behaviour over which an individual exercises control.
I will clarify these elements as it pertains to my personal situation:
My personally held religious convictions was not in any way impeding me to carry on my working duties. I have worked from home since March of 2020 and I attended the office only once to pick up computer equipment. I was certain that my employer would honor my religious accommodation and allow me to continue to work from home and perform testing if there ever was a need to attend the office. On April 7, 2022, the Government of Canada’s budget proposed to allow federal public servants to work from home more permanently and potentially selling off federal buildings that could aid in the government's effort to save as much as $6 billion over five years. Why was my employer not accommodating me to continue working from home? I advised my employer that I wanted to continue working as I was willing and able to continue all working duties from home and there was no need to attend the office. My employer has offered accommodations since 2015 and they included accommodations in their policy. I was confident that my employer would have accommodated me based on my personally held religious beliefs and offer alternatives such as testing, PPE or social distancing if there ever was a need to attend the office. I had no expectation that my religious accommodation was going to be denied. It was not deliberate to be placed on leave with no pay and I was not neglectful as I followed the policy and the accommodation process and was more than willing to provide any further documentation or answer any additional questions. I was not unwilling to be vaccinated, but unable to. Therefore, my actions to be placed on leave with no pay was not deliberate in any way. My employer breached the employer-employee relationship by violating my religious rights. Disciplining an employee for failing to be vaccinated due to religious convictions, when it was not a requirement of being hired and where there is a reasonable alternative, is unjust. There was no wilful, deliberate or intentional misconduct in any of my actions to comply with the employer’s policy nor the accommodation process.
To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional. It is not my conduct, but my employer's conduct that caused my leave with no pay. As an employee I followed the employer's instructions to fulfill my duties as an employee. There was no deliberate, willful action or behavior on my part. Anything that I have done was a consequence to fulfill my employment duties, there was no neglect of duty. I followed the policy by attesting to my vaccination status before the due date, I applied for a religious accommodation, I answered all additional questions asked by management and I watched the health and safety video on-line training as requested. There was no hesitation nor any action of mine that was unwilling to follow the policy nor the accommodation process. I provided my personal health information and my personally held religious convictions and this is private information that was never asked by my employer beforehand. I did not think my actions would land me on unpaid leave as my employer used language such as “may” be placed on unpaid leave if I did not submit an accommodation request. I followed all the instructions in the employer’s Duty to Accommodate process. There was no implication that my religious accommodation would be denied. The employer changed dates and I was already temporarily accommodated. I was in complete shock when my religious accommodation was denied as I did not understand how it could have been refused based on religious protective grounds in my collective agreement, employer’s legal Duty to Accommodate, the Canadian Bill of Rights and the Canadian Human Rights Act.
My religious accommodation was denied as my employer stated that my faith is sincere but it is considered a personal choice and they are “not accepting any religious accommodations at this time,” hence the union grievance that was filed in regards to religious discrimination. The employer’s policy is not part of my collective agreement and there were no changes to my collective agreement that I have consented to. My collective agreement did not include vaccination or mandatory covid vaccination, it does not contain any mandatory vaccination of any sort. I did not believe that I was going to be placed on leave with no pay as I followed all procedures in the policy and accommodation process. I followed all the procedures without any hesitation. I am not unwilling to be vaccinated, I am unable to be vaccinated due to my religious convictions. My employer requested me to perform a duty that was not part of my collective agreement nor legally required. I did not know that having religious convictions before being hired or during employment could possibly get in the way of me carrying out my working duties for my employer or that there was a possibility of being placed on leave with no pay after applying for a religious accommodation. The employer has the obligation to accommodate the employee up to the point of undue hardship. My employer could have reasonably and lawfully accepted my religious accommodation. I did not believe I was going to be placed on unpaid leave since as a federal worker I have a collective agreement bound by the Canadian Human Rights Act. The Canadian Bill of Rights has protective religious grounds and the employer has their legal Duty to Accommodate.
There are no laws that exist in Canada to include a violation of the Canadian Human Rights Act nor the Canadian Bill of Rights as a condition of employment. The employer violated my collective agreement and their legal Duty to Accommodate. I did not know, and I did not believe I was going to be placed on leave without pay for exercising my right to practise my personally held religious convictions. My employer is illegally placing me on leave without pay. My union has filed a policy grievance on my behalf for breaching the collective agreement and religious discrimination. I am still currently a Government of Canada employee, on leave without pay and the employer will contact me every 6 months advising of a policy review. If I was dismissed due to an allegation of misconduct, then as a federal employee an investigation would arise. There is no such investigation occurring or pending with my employer nor with my union. If I am accused of misconduct by my employer, then why did my employer offer me team leader acting assignments up to the month of dismissal and nominate me for an award of excellence in the same month my religious accommodation was denied? As a Government of Canada employee, an allegation of misconduct is so serious that it constitutes a breach of the employment agreement allowing an employer to summarily fire an employee. I was not terminated; I am currently an employee on leave with no pay. My employer has failed to comply with the contract of employment in a major respect and has unilaterally and substantially changed the terms of employment and expressed an intention to do so without consent. This leave without pay is unjust and should be treated as a temporary lay-off.
Digest of Benefit Entitlement Principles, Section 32, 6.6.2:
"If imposed by the employer or set out in the employee's contract that the claimant must take leave (without pay or with reduced pay), then this is considered to be a lay-off. Even if the claimant was able to choose the period in which such imposed leave could be taken, this would not change the fact that the leave was not taken voluntarily. In such circumstances, a disentitlement will not be imposed".
This leave with no pay was imposed by the employer and should be considered a lay-off.
My employer provided an authorized leave letter and they will contact me when the policy is reviewed, at a minimum of six months.
Digest of Benefit Entitlement Principles, Chapter 7.3.0:
“Misconduct is identified on Social Service Canada’s website of losing a driver’s license, refusing to work specific shifts, accused of absenteeism or lateness, safety violation/damage to a machine, inappropriate dress/uniform/appearance, theft, using alcohol/dugs, committing an act of violence or inappropriate behavior, or being involved in a criminal offence.”
I was not placed on leave without pay from my employer due to any misconduct. I followed the policy and requested a religious accommodation. I was not given any warnings of any kind of misconduct and there is no pending investigation of misconduct. I have an excellent work record and had team leader acting assignments up to the month of dismissal. This is an unintentional consequence.
Digest of Benefit Entitlement Principles, 6.5.10 Significant changes in work duties:
“An employee is entitled to expect the employer to respect the terms of the employment contract or collective agreement and to not unilaterally make significant changes in their initial tasks and duties without consulting the person or providing appropriate compensation.”
My employer initiated a policy that would drastically change my working conditions. This was not part of my collective agreement and there was no consent of changes to the agreement. An employee expects the employer to abide by the terms of the collective agreement agreed upon at the time of hire.
Canadian Bill of Rights:
“The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada. —The Canadian Bill of Rights (Preamble)”
Recognition and declaration of rights and freedoms
“1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;”
There is no limit to protection of the law.
Canadian Human Rights Act:
“All individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction - The Canadian Human Rights Act (Purpose).”
“The duty to accommodate is the obligation to meaningfully incorporate diversity into the workplace. The duty to accommodate involves eliminating or changing rules, policies, practices and behaviours that discriminate against persons based on a group characteristic, such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status and disability.”
The duty to accommodate is a legal requirement, per sections 2 and 15 of the Canadian Human Rights Act. Section 2 reads as follows: “2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. The Act says that accommodation is required, short of undue hardship. If you fail to follow this process, you can be found to have discriminated, per the Canadian Human Rights Act.”
Canadian Human Rights Act 7, 8, 10:
“Employment: 7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
Employment applications, advertisements: 8. It is discriminatory practice (a) to use or circulate any form of application for employment, or (b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination.
Discriminatory policy or practice: 10. It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.”
There was discrimination on a prohibited ground within the meaning of the Canadian Human Rights Act; my religious convictions. My rights have been violated according to the Canadian Human Rights Act, the Canadian Bill of Rights, my collective agreement and the employer’s legal Duty to Accommodate. There were no other measures or reasonable alternatives offered by my employer. I was forced on leave with no pay at no fault of my own when I was willing and able to continue working from home and perform rapid antigen testing if there ever was a need to attend the office. I am seeking remedy by a union grievance and when adjudication is finalized then I will file a Human Rights violation with the Canadian Human Rights Commission in regards to religious discrimination. Ignorance of the law does not excuse misconduct in anyone.
Ont. Human Rights Comm. v. Simpsons-Sears [1985] 2 SCR 536
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do
In the field of discrimination, criteria was established in the O’Malley decision of the Supreme Court of Canada’s decision. This decision rules on adverse effect discrimination, as in my situation. The obligation to be vaccinated against COVID-19 according to the employer’s Policy: even if imposed in light of health and safety concerns, results in unjust distinction against me because: the obligation to be vaccinated requires her to act against her creed and religion while the Policy does not have such effect on other employees. This is what is meant by adverse effect discrimination. In more than one decision, the Supreme Court has established that, in the event of adverse effect discrimination, namely based on religion or creed, the solution resides in implementing reasonable accommodation measures (or alternative arrangements), unless they cause undue hardship.
Syndicat Northcrest v. Amselem, [2004] 2 SCR 551
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2161/index.do
Based on the Supreme Court’s statement in the Amselem decision (, the Employer is in no position to be, nor should it become, the arbiter of religious dogma. In this decision the Court analyses the freedom of religion protected by both the Quebec and Canadian Charters of Rights and Freedoms: Both linked to a person’s fundamental rights, as the Canadian Human Rights Act.
In paragraphs [50] to [53] of this decision: [50] In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.”
[51] That said, while a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue: see Jones, supra; Ross, supra. It is important to emphasize, however, that sincerity of belief simply implies an honesty of belief: see Thomas v. Review Board of the Indiana Employment Security Division, supra.
[52] According to American constitutional law scholar Professor Laurence Tribe, the jurisprudence in this area evinces that inquiries into a claimant’s sincerity must be as limited as possible. He argues that “given the widening understanding of what constitutes religion in our society, the very rights ostensibly protected by the free exercise clause might well be jeopardized by any but the most minimal inquiry into sincerity”: L. H. Tribe, American Constitutional Law (2nd ed. 1988), at pp. 1245-46. While this was written in the context of the First Amendment to the U.S. Constitution, I believe that it is equally applicable to delimiting the court’s role in interpreting religious freedom under the Quebec (or the Canadian) Charter. Indeed, the court’s role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Otherwise, nothing short of a religious inquisition would be required to decipher the innermost beliefs of human beings.
[53] Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony (see Woehrling, supra, at p. 394), as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. It is important to underscore, however, that it is inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Over the course of a lifetime, individuals change and so can their beliefs. Religious beliefs, by their very nature, are fluid and rarely static. A person’s connection to or relationship with the divine or with the subject or object of his or her spiritual faith, or his or her perceptions of religious obligation emanating from such a relationship, may well change and evolve over time. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.
[65] As outlined above, the first step in successfully advancing a claim that an individual’s freedom of religion has been infringed is for a claimant to demonstrate that he or she sincerely believes in a practice or belief that has a nexus with religion. The second step is to then demonstrate that the impugned conduct of a third party interferes with the individual’s ability to act in accordance with that practice or belief in a manner that is non-trivial…
[132] Freedom of conscience and religion is guaranteed by s. 3 of the Quebec Charter and s. 2(a) of the Canadian Charter. Although most, if not all, of this Court’s decisions relating to freedom of religion have interpreted s. 2(a) of the Canadian Charter, it is appropriate to refer to them in interpreting s. 3 of the Quebec Charter, given the similarity in the wording of the two provisions.
[133} . . . Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs of his conscience.
[46] “To summarize up to this point, our Court’s past decisions and the basic principles underlying freedom of religion support the view that freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.”
Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84
https://canlii.ca/t/21zsp
In paragraph 54 of that decision, which describes well the precedence of the collective agreement over an Employer policy:
“[54] Within its general right to manage, the employer is empowered to adopt and implement policies unilaterally. However, the discretion of the employer’s action is limited by the provisions of the collective agreement. The compliance of employer policies with the collective agreement has generally been viewed as being adjudicable. Brown and Beatty, at para 4:1520 addresses the subject as follows:
Even where such rules do not form part of the agreement, it is now generally conceded that in the absence of specific language to the contrary in the collective agreement, the making of such rules lies within the prerogative or initiative of management, and arbitrators have held this to be so whether or not an express management’s rights clause exists reserving the right of management to direct the workforce. However, this rule-making power is neither absolute nor without limitation. Rather, as summarized in KVP Co., a number of principles relating to this power have now become universally accepted among arbitrators. These principles provided that:
I — Characteristics of Such Rule: A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: 1. it must not be inconsistent with the collective agreement. 2. it must not be unreasonable.
Reformulated, these criteria may be said to require that any plant rules which are unilaterally promulgated must not be inconsistent with the terms of the collective agreement, their enforcement not be unreasonable, and they must be brought to the attention of those intended to be regulated by them. With respect to the first requirement, arbitrators have uniformly held that a unilaterally promulgated rule must not violate an express provision in the collective agreement, unless overridden by legislation […] And to determine whether the rule infringes upon subject-matters occupied by a provision of the collective agreement, the arbitrator must compare the rule with the terms of the collective agreement […]”
S.L. v. Commission scolaire des Chênes, [2012] 1 SCR 235
https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7992/index.do?q=S.L.+human+rights
In paragraph 24 of that decision, it describes the infringement of freedom of religion:
“[24] It follows that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice. As with any other right or freedom protected by the Canadian Charter and the Quebec Charter, proving the infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom. To decide otherwise would allow persons to conclude themselves that their rights had been infringed and thus to supplant the courts in this role. […]”
Roncarelli v. Duplessis, [1959] SCR 121
https://canliiconnects.org/en/cases/1959canlii105
The proposition that in Canada a member of the executive branch of government does not make the law but merely carries it out or administers it requires no citation of authority to support it. Similarly, I do not find it necessary to cite from the wealth of authority supporting the principle that a public officer is responsible for acts done by him without legal justification. I content myself with quoting the well-known passage from Dicey's "Law of the Constitution", 9th ed., p. 193, where he says “... every official, from the Prime Minister down to a constable or a collector of taxes, is under the saine responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.”
Cabiakman v. Industrial Alliance Life Insurance Co. [2004] 3 S.C.R. 195
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2170/index.do
The Supreme Court of Canada upheld the decision of the Quebec Court of Appeal that ruled that Industrial Alliance was not justified in suspending Cabiakman without pay and awarded him $200,000 in damages. The Supreme Court of Canada affirmed the suspension remained administrative in nature at all times, there was no reason to refuse Cabiakman’s salary as he remained available to work. The Court stated that the employer cannot waive the employee’s right to receive the entitled salary if the employee is available and willing to perform the work. If the employer wants to suspend an employee without pay in order to investigate an act that the employee is accused of, whether criminal or a customer/employee complaint, the employee has the option to agree to such terms as the employer proposes in light of the circumstances. However, the employee is under no obligations to agree to such terms and may refuse a suspension without pay and such a refusal would not constitute a resignation.
Potter v New Brunzwick (Legal Aid Services Commission), [2015] SCC 10:
The Plaintiff brought action against an employer, claiming that an indefinite administrative suspension constituted his constructive dismissal, and entitled him to damages amounting to full payment for the remainder of his contract term. A constructive dismissal, according to the trial judge, occurs where words or actions of an employer would lead an objective observer to conclude that an employee had been removed from his duties permanently. However, the Plaintiff in this case “could hardy allege that he was constructively dismissed based on something the employer did unbeknownst to him”. In other words, constructive dismissal was to be determined on an objective test applied to the information subjectively held by a Plaintiff at the time of an alleged dismissal. The Court of Appeal’s affirmation relied on the standard set out in Farber v Royal Trust Co, [1997] 1 SCR 846 [Farber], which requires a “fundamental or substantial change to an employee’s contract of employment” to constitute a constructive dismissal. According to the NBCA, an administrative suspension of the Plaintiff, without more, did not suffice to constitute such fundamental or substantial change. The indefinite nature of the Plaintiff’s suspension did weigh in favor of a finding of constructive dismissal, other factors weighed more heavily against this finding. Taken from Devlin v NEMI Northern Energy & Mining Inc, 2010 BCSC 1822, these factors included the continuation of the Plaintiff’s pay and benefits, and the Board’s not asking the Plaintiff to return his work-related supplies. The judge considered the two elements of constructive dismissal as two independent steps in a single test. Applying Farber, the majority set out these independent steps as: (1) proving that the employer’s conduct, whether by a single action or a series of acts, demonstrated “an intention to no longer be bound by the contract” on an objective standard; and (2) proving that “a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed”. The employer had repudiated the employment contract in its manner of administratively suspending the Plaintiff. Any employer’s right to administratively suspend an employee must be fettered by the principles of good faith, minimal impact and by legitimate business reasons. The administrative suspension is not reasonable or justified.
“7(1) unemployment benefits are payable as provided in this part to an insured person who qualifies to receive them.
Qualification requirement:
(2) An insured person qualifies if the person
(a) has had an interruption of earnings from employment; and
(b) has had during their qualifying period at least 420 hours of insurable employment.”
As I have paid into El while I was working, I believe that I am entitled to it as all of the legislative references and case laws protect religious grounds. How can I not be entitled to it as there is no reference to mandatory vaccinations in this requirement.
Employment Insurance Act - Section 29(a)(b):
“29 For the purposes of sections 30 to 33,
(a) employment refers to the claimant’s last employment before their initial claim for benefits or any employment of the claimant within their benefit period;
(b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;
(b.1) voluntarily leaving an employment includes
(i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,
(ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and
(iii) the refusal to continue in an employment after the work, undertaking or business of the employer is transferred to another employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and…”
If this leave with no pay is considered a suspension or an allegation of misconduct, then why did my employer authorize such a leave? If this is determined to be a suspension or an allegation of misconduct then my employer would not be currently paying for my supplementary death benefit, disability insurance, dental and health care benefits. This leave with no pay is still pensionable.
Employment Insurance Act – Section 30
“Disqualification — misconduct or leaving without just cause:
(1) A claimant is disqualified from receiving any benefits if the claimant lost their employment because of their misconduct or voluntarily left their employment without just cause, unless
(a) the claimant has, since losing or leaving the employment, been employed in insurable employment and made a new initial claim for benefits; or
(b) the claimant is disentitled under sections 31 to 33 in relation to the employment.”
There is no misconduct in regards to applying for an accommodation based on religious grounds.
Employment Insurance Act - Section 31
“Disentitlement — suspension for misconduct
A claimant who is suspended from their employment because of their misconduct is not entitled to receive benefits until
(a) the period of suspension expires;
(b) the claimant loses or voluntarily leaves the employment; or
(c) the claimant, after the beginning of the period of suspension, accumulates with another employer the number of hours of insurable employment required by section 7 or 7.1 to qualify to receive benefits.”
My employer committed misconduct, a violation of a law. They violated sections 1) (a) and (b) of the Canadian Bill of Rights, Canadian Human Rights Act, my collective agreement, and the employer’s legal Duty to Accommodate. If you are considering that the employer disciplined me for misconduct, it is a breach of the Canadian Human Rights Act. There is a sufficient causal connection between an employee’s misconduct and a protected human rights ground. The employer has the obligation to accommodate the employee up to the point of undue hardship. Did Service Canada perform any investigation with my employer and ask if the policy was reasonable considering a human rights violation or why I was not accommodated nor offered alternatives such as testing to continue working from home? Other reasonable alternatives existed which could have remedied the situation.
Employment Insurance Act: Subsection (ss49(2))
Benefit of the doubt; “The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced.”
I disagree with the decision and multiple Service Canada agents failed to resolve the critical discrepancy. It is unclear whether they were aware of or considered basic entitlement principles such as Digest of Benefit Entitlement Principal Chapter 21, Section 3 which states:
“Where there is conflicting evidence, cases are usually resolved by a preponderance of evidence on one side or the other. However, when no evidence is sufficient to tip the scale, the claimant is given the benefit of the doubt.”
Why wasn’t the benefit of doubt principle applied in my favour? If correctly applied, it would have concluded that I had been placed on a leave without pay and applied Digest of Benefit Entitlement Principle, 6.6.2 Authorized period of leave – section 32 which states: “If imposed by the employer or set out in the employee's contract that the claimant must take leave (without pay or with reduced pay), then this is considered to be a lay-off. Even if the claimant was able to choose the period in which such imposed leave could be taken, this would not change the fact that the leave was not taken voluntarily. In such circumstances, a disentitlement will not be imposed.”
Employment Insurance Act: Section 51:
“If, in considering a claim for benefits, the Commission finds an indication from the documents relating to the claim that the loss of employment, as defined in paragraph 29(a), resulted from the claimant’s misconduct or that the claimant voluntarily left employment, the Commission shall:
(a) give the claimant and the employer an opportunity to provide information as to the reasons for the loss of employment; and
(b) if the information is provided, take it into account in determining the claim.”
There are no indications from any document provided that demonstrate that the loss of employment resulted from misconduct. My employer acted in bad faith; they failed to abide by my collective agreement, Canadian Human Rights Act and their legal duty to accommodate. They failed to be reasonable, flexible, and accommodating and changed policies and procedures after the employment agreement was established and failed to abide by the Canadian Bill of Rights.
Digest of Benefit Entitlement Principles, 6.5.10 Significant changes in work duties:
“An employee is entitled to expect the employer to respect the terms of the employment contract or collective agreement and to not unilaterally make significant changes in their initial tasks and duties without consulting the person or providing appropriate compensation. A number of factors come into play in these circumstances, in particular the scope of the changes, the anticipated duration of the changes, whether the changes are imposed unilaterally by the employer or were agreed to by the union or the employee, and whether the changes had any effect on the person's pay. In other words, it must be determined whether the changes in the tasks and duties were unreasonable, led to abuse or unduly breached the terms and conditions negotiated at the time of hiring, or contained in the employment contract or collective agreement.”
Digest of Benefit Entitlement Principles, 7.2.4.3 Breach in employer-employee relationship:
"Any employment relationship can be called a contract between employee and employer. Whether written, verbal or unstated, this contract is an agreement about the duties and responsibilities each party owes the other. Each party must be able to trust that the other will fulfill those duties and responsibilities. It can be in the form of a nonverbal understanding, such as the employee expecting a pay cheque on pay day, or the employer expecting staff to arrive on time and stay until the end of the shift. A breach of the employer/employee relationship may occur on either side of the relationship or may be an event external to the employment. The simple existence of a breach does not mean there has been misconduct. Misconduct means the employee behaved in a manner such that the work relationship could not continue. One employer may tolerate a behaviour that is defined as misconduct under the case law, while another may not."
Digest of Benefit Entitlement Principles, 7.3.2 Insubordination:
“Insubordination may be defined in terms of a refusal or disobedience by an employee regarding carrying out an order, instruction, regulation, or any other expression of authority used by an employer. No misconduct exists if the refusal or disobedience can be explained by a serious and genuine misunderstanding not involving bad faith on the part of either. The same can be said when it is apparent that a personality conflict between the employee and the employer caused the dismissal, and the reason given by the employer was a mere pretext. An employee may find it impossible, in all conscience, to follow a policy set out by the employer. What should be considered in this case is the situation that led to the problem, whether the actual policy appears to be reasonable, and whether in the circumstances other reasonable alternatives existed which could have remedied the situation.”
Digest of Benefit Entitlement Principles, 7.3.2.2 Refusal to carry out an order or instruction:
“Refusal to obey or comply with a legitimate and reasonable order or instruction from the employer may constitute misconduct. The officer must try to determine whether the order or instruction was reasonable and whether it contravened any legal statutes or provisions of a collective agreement. It is appropriate to question whether the claimant could have made use of channels provided for under a collective agreement, for example, to voice disagreement rather than risk dismissal by a flat refusal. If the order or instruction seems reasonable and rational, misconduct may be concluded, especially where the employee was warned verbally or in writing, to obey his or her supervisor's orders. If the claimant contends the order or instruction was unreasonable, they must provide explanations in support of that contention and show why other channels were not used to voice their disagreement.”
My actions were neither negligent nor careless and that it was the employer’s conduct that was prohibited and neglectful by denying their legal Duty to Accommodate my religious convictions. The employer breached the employer-employee relationship by not abiding by my collective agreement. My employer overstepped its legal boundaries, breaking Canadian law and its own policies, violating my fundamental rights of life, liberty, and security as worker.
Canadian National Report immunization (1996)
“Unlike some countries, immunization is not mandatory in Canada; it cannot be made mandatory because of the Canadian Constitution…It must be emphasized that…exceptions are permitted on medical or religious grounds and reasons of conscience; legislation and regulations must not be interpreted to imply compulsory immunization.”
The Universal Declaration of Human Rights:
https://www.un.org/en/about-us/universal-declaration-of-human-rights
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3 - Everyone has the right to life, liberty and security of person.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Article 25
Everyone has a right to a standard of living adequate for the health and well-being of him/herself and their family, including food, clothing, housing and medical care and the right to security in the event of unemployment.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.