Please be advised that this website is no longer maintained as of November 2022. For updates, please follow the National Citizens Inquiry (NCI).
You've been denied EI benefits because of your choice to get vaccinated? Appeal ! Here's how.
Each case is examined separately. Note that not all appeals have been awarded, but several have been.
Join this Telegram if you have any questions: https://t.me/+3q_vpIVXto43ZWFh
If Employment Insurance Commission (EIS) has denied you the benefits (for whatever reason), here is what you do:
First you need to submit Request for Reconsideration of an Employment Insurance decision (within 30 days from the date of their letter) - see examples here
Then, if Employment Insurance Commission has not reconsidered their decision , you can submit an appeal to the Social Security Tribunal (SST) - see examples here and on this page below .
If Social Security Tribunal (SST) dismissed your appeal, can ask the Appeal Division of the Tribunal to review this General Division decision. This is called asking for “leave (permission) to appeal”. To start this process, complete an Application to the Appeal Division form. You can find this form on the Tribunal’s website at www1.canada.ca/en/sst/forms.html. You have 30 days from the day you receive the SST letter with decision to submit your form.
Appeal and appeal again if you have to until you reach the end of the road with the Appeal Division, then you can apply for judicial review.
- They love to point out the Federal Court decision in Cecchetto v. Attorney General which is easy to argue against if your circumstances are even remotely different than those presented in that ruling.
- It also matters if you were a unionized employee in which case KVP test should be applied.
- They are intentionally wasting time and making the process more difficult for people but with every unfair decision they are just digging themselves a deeper hole.
- If they want a class action lawsuit they will get one (See JCCF actions below)
If you are unionized,
Your employer have breached your collective agreement by implementing this policy.
and they (EI , SST) didn’t consult with your union which also violates labour laws.
You can read about KVP test here: https://nelliganlaw.ca/blog/when-unilateral-management-policies-are-invalid-the-renewed-power-of-the-kvp-test/
Look at this arbitration decision from Nov 2021 - https://hicksmorley.com/wp-content/uploads/2021/11/PWU-and-ESA-ESA-P-24-Award-November-11-2021.pdf
Also, you can say "The government said they didn't force anyone to get jabbed. That was on the companies.
PLEASE NOTE THAT THERE ARE DEADLINES TO FILE AN APPEAL, FOR WHICH YOU ARE RESPONSIBLE
If you missed the 30-day deadline to file a Request for Reconsideration, the EI Commission may allow a longer period to make a request for reconsideration if the Commission is satisfied that there is a reasonable explanation for requesting a longer period. You will need to fill out Section 5 of the Request for Reconsideration form. Please see: https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=INS5210
If you missed the 30-day deadline to file an appeal to the Social Security Tribunal – General Division, you may still file the Notice of Appeal form, and explain why your appeal is late in Section 8 of the form. Please see: https://www.sst-tss.gc.ca/en/your-appeal/social-security-tribunal-forms#adei
References:
https://www.canada.ca/en/services/benefits/ei/ei-reconsideration.html
Form: SC INS5210 (2015-07-008)E: https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=INS5210
https://www.jccf.ca/wp-content/uploads/2022/09/General-Division-EI-Decision.pdf (Example: Appeal allowed. Decision date: September 12, 2022)
https://www.jccf.ca/wp-content/uploads/2022/06/2022-06-06-Letter-to-Minister-Qualtrough.pdf
CHALLENGING A DECISION ABOUT YOUR EMPLOYMENT INSURANCE CLAIM: RECONSIDERATION AND THE SOCIAL SECURITY TRIBUNAL (on telegram group) - here
This is what you will need to know and defend agaiinst: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/fired-misconduct.html
you’ll have to provide evidence that no misconduct took place - according to EI act's definition of "misconduct", which is that "you did something that caused you to lose your job".
NB: You can always also apply to the commission to get the recording of the tribunal
Consider reading / contacting Mr Hickey from the OCLA for guidance, he is as also a data analyst (worked at the BoC and got caught up in the same situation as us):
https://ocla.ca/vaccine-declining-data-scientist-joseph-hickey-settles-with-bank-of-canada/
Posted on November 26, 2022
Hickey’s appeal submission is here:
https://ocla.ca/data-scientist-files-internal-appeal-of-bank-of-canadas-mandatory-vaccination-policy/
A media article about Hickey’s appeal was published by the Western Standard: https://archive.ph/vwCV1
***
The Justice Centre for Constitutional Freedoms (“Justice Centre”) is a Canadian legal organization and federally registered charity that defends citizen’s fundamental freedoms under the Canadian Charter of Rights and Freedoms through pro bono (free) legal representation and through educating Canadians about a free society. The Justice Centre has been doing this since 2010.
The Government of Canada is disallowing employment insurance (“EI”) benefits to persons who have been fired or suspended from their employment for not getting the Covid vaccines (the “Policy”). Service Canada and the Canada Employment Insurance Commission (the “Commission”) are insisting that unvaccinated employees have been suspended due to their own “misconduct” and consequently have denied them benefits under s. 31 of the Employment Insurance Act.
This Policy of Service Canada and the Commission is not in accordance with the jurisprudence, including from the Supreme Court of Canada. The bar for proving misconduct is a high one. In cases where misconduct is found, the employee’s misconduct was frequent, or they were conducting illegal activities on the work premises even though they had received several warnings. The conduct must be so serious as to constitute a breach of the employment agreement.
Not every incident of misconduct constitutes “cause” for dismissal (Metropolitan Hotel and H.E.R.E., Loc 75 (Bellan)(Re) 2002 Canlii 78919 (ONCA)). The employee must be “guilty of serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with his duties” (R v Arthurs, Ex Parte Port Arthur Shipbuilding Co. [1967] 2 O.R. 49-73). A simple refusal to get a Covid vaccine is not illegal activity and does not suffice as willful misconduct, particularly when an employer has not offered to accommodate an employee who refuses to disclose their status or to get vaccinated.
Employers are required to accommodate the medical conditions or sincerely-held religious beliefs of employees that prevent them from receiving Covid vaccines. Further, section 7 of the Charter requires government to respect employees’ rights to bodily autonomy, including the right to receive—or not receive—particular medical interventions, such as Covid-19 vaccines.
Section 7 of the Charter states that: “Everyone has the right to life, liberty and security or the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” There are many decisions in superior courts affirming this right. In Fleming v Reid, 1991 CarswellOnt 1501 (at para 41), the court stated: “the right is so entrenched in the traditions of our law as to be ranked as fundamental and deserving of the highest protection.”
The Supreme Court of Canada stated in AC v Manitoba (Director of child and Family Services), 2009 SCC 30 cited the Morgentaler case, stating “[Liberty], properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance”. And further citing Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 that: “liberty is engaged where state compulsions or prohibitions affect important and fundamental life choices”.
The Government’s current Policy to deny EI benefits to those who lost their jobs for not getting the Covid vaccines is not in line with the caselaw in this area. Rather, it is arbitrary and being used to advance a political agenda.
The purpose of the Employment Insurance Act is to enable someone who involuntarily loses their employment to receive benefits which the employee pays for, in part. The Policy position taken by Service Canada and the Commission in labelling a simple refusal to get a COVID-19 vaccination as “misconduct” is “…inconsistent with the objective of the enabling statute or the scope of the statutory mandate.” Hudson’s Bay Company ULC v. Ontario (Attorney General) (Div. Ct., 2020) at p. 37.
By acting without a basis in law, Service Canada and the Commission have no legal jurisdiction for denying EI benefits to Canadians who did not receive the Covid vaccines. These decisions made are therefore null and void.
Have you or someone you know been fired or put on unpaid leave for not proving they have had the Covid vaccination?
Have they been denied EI benefits by the Commission due to their arbitrary program policy that not receiving the Covid vaccines constitutes “misconduct“?
Please remember that you must appeal decisions on EI benefits within 30 days, as described on the following chart.
You might also want to contact Justice Centre by completing the intake form at www.jccf.ca/get-help/ to request pro bono legal representation.
JCCF said last year they will initiate legal action on our behalf so it is just a matter of time before they do:
https://www.jccf.ca/wp-content/uploads/2022/06/2022-06-06-Letter-to-Minister-Qualtrough-1.pdf
This document is for educational purposes only, and contains very general thoughts and general information, not legal ad-vice. It is not a substitute for competent legal advice from a lawyer familiar with your situation
Step 1. File a Request for Reconsideration with Service Canada
In the initial denial letter from Service Canada, there should be a reference to an option to make a formal Request for Reconsideration. The form to make this request to Service Canada can be found here (https://www.canada.ca/en/services/benefits/ei/ei-reconsideration.html)
Step 2. File an appeal to the Social Security Tribunal of Canada, General Division
If your Request for Reconsideration is denied, you may file an appeal of Service Canada’s decision to the General Division of the Social Security Tribunal within 30 days from receipt of the denial letter. The Application to the General Division can be found here.
Possible responses to your appeal application include:
A hearing is scheduled, wherein you are provided an opportunity to present your case and argue why your application for EI benefits should not have been denied. Representatives for Service Canada may also be present to make arguments as to why your claim was denied.
The application may be summarily dismissed through a written decision without a hearing. They may ask you to make further submissions before the application is dismissed.
You can these decisions to help prepare your appeal. All appeals to EI are here: https://decisions.sst-tss.gc.ca/sst-tss/ei-ae/en/nav_date.do
The Canada Employment Insurance Commission (Commission) has proven that the Claimant lost his job because of misconduct (in other words, because he did something that caused him to lose his job). This means that the Claimant is disqualified from receiving Employment Insurance (EI) benefits.1
1 Section 30 of the Employment Insurance Act says that claimants who lose their job because of misconduct are disqualified from receiving benefits.
Dont do the same mistake as in the unsuccessful Example above. -
It's not upto you or SST to judge whether your employer's decision to mandate vaccination is scientifically valid, ethical or legal.
Focus ONLY on why YOUR conduct can not be treated as MISCONDUCT.
To help you to prepare your presentation to demonstrate this, see how this was demonstrated in the successful Examples below.
[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.
[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.
[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.
source: 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.
Case details here and here: https://decisions.sst-tss.gc.ca/sst-tss/ei-ae/en/item/521599/index.do?q=Vaccine
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.
source: 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.
Case details here and here: https://decisions.sst-tss.gc.ca/sst-tss/ei-ae/en/item/521599/index.do?q=Vaccine
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.
[4] The Claimant says she cannot be vaccinated for religious reasons and provided a letter to her employer from her religious leader on November 1, 2021.
https://decisions.sst-tss.gc.ca/sst-tss/ei-ae/en/item/521599/index.do?q=Vaccine March 14, 2022
[5] Her employer said they reviewed the letter she provided, but determined the letter did not set out a valid basis for accommodation as the letter suggests it is merely
the Claimant’s personal belief she cannot be vaccinated, and not actually a part of her religion that is precluding her from being vaccinated.
[6] The Claimant’s employer terminated her employment on November 2, 2021, saying that her refusal to be vaccinated and abide by the vaccination policy is
insubordination.
Was the Claimant’s conduct misconduct?
[39] So, now that I have determined why the Claimant was fired, I now have to determine if the Claimant committed the conduct she was fired for.
[40] The answer to that question is yes. The Claimant intentionally did not get vaccinated and asked for a religious exemption.
[41] The final part of the test to determine if the Claimant lost her job due to misconduct is whether the Claimant knew, or ought to have known, that she would be
fired for not being vaccinated and asking for a religious exemption.
[42] I find the Claimant could not possibly have known this, nor should she ought to have known this.
[49] The appeal is allowed.
https://www.ccat-ctac.org/principles-of-administrative-justice/
The following guiding principles relate to all Administrative Tribunals, their Adjudicators and Staff, affiliated with CCAT and operating in any Canadian jurisdiction.
Requires that Tribunals be independent in matters of governance and that adjudicators be independent in decision-making;
Requires that Tribunals, adjudicators and staff be impartial and free from improper influence and interference;
Requires that Tribunals, adjudicators and staff be without conflicts of interest and act in a manner which precludes any conflict of interest;
Requires that adjudicators and staff be qualified in their subject matter and administrative justice processes;
Requires that adjudicators and all participants treat each other with dignity, respect and courtesy.
Should ensure that the dispute resolution process is accessible, affordable, understandable and proportionate to the abilities and sensibilities of users;
Should be transparent and accountable;
Should apply the rules of natural justice;
Should be expeditious both in process and in rendering decisions, with reasons to be given where appropriate;
Should where possible, provide an opportunity for informal dispute resolution;
Should minimize any disadvantages to unrepresented parties;
Should provide consistency in procedure and adjudicative outcomes.
Remember you can use ATIP to find out the names of EI officers who made the decision and all information that was used:
Via https://atip-aiprp.apps.gc.ca/atip/welcome.do Or/and (from https://www.tbs-sct.canada.ca/ap/atip-aiprp/coord-eng.asp#E)
Employment and Social Development Canada (formerly Human Resources and Skills Development Canada)
Tom Ogden. Access to Information and Privacy Coordinator, NC-COMM-ATIP-AIPRP-GD@hrsdc-rhdcc.gc.ca
"I request all information available on my case as noted below, including the full names of the person(s) who made the decision(s) to deny me EI benefits, all emails, notes, attachments and all other documents relied upon to make the decision(s, including from all interactions with my employer. I also request all laws, policies and rules in relation to denied benefits in this case.
My EI access code is:
Initial denial of Benefits: ....
Reconsideration denial: ...