A federal government worker, denied employment insurance (EI) benefits after he refused to get vaccinated against COVID-19, has lost his appeal.
The appeal was in response to a General Division decision of the Social Security Tribunal of Canada that denied the claimant EI benefits. The tribunal member, Neil Nawaz, refused permission to appeal, citing the lack of an arguable case.
The case revolves around DM, a computer support technician employed by a federal government agency. On Nov. 12, 2021, DM’s employer placed him on an unpaid leave of absence after he refused to get vaccinated for COVID-19 within the specified deadline.
The Canada Employment Insurance Commission determined that DM’s non-compliance with the vaccination policy constituted misconduct, leading to the denial of EI benefits.
The General Division supported the Commission’s decision, stating that DM knowingly violated the vaccination policy and should have been aware that such disregard could result in his suspension. In response, DM sought permission to appeal the General Division’s decision, arguing that he was not guilty of misconduct and highlighting alleged errors made by the General Division.
Three key questions
The Appeal Division, in its analysis of the case, addressed three key questions:
- Was the application for leave to appeal filed late?
- Should an extension of time be granted?
- Does the appeal have a reasonable chance of success?
Although DM’s application for leave to appeal was submitted late, the tribunal accepted his reasonable explanation for the delay. Consequently, an extension of time was granted for consideration of the application. However, after examining the arguments presented, the tribunal concluded that the appeal lacked a reasonable chance of success.
Worker’s argument? No legal requirement for vaccination
The tribunal rejected DM’s contention that there was no misconduct on his part since there is no legal requirement for COVID-19 vaccination. It maintained that D.’s deliberate refusal to comply with his employer’s vaccination policy constituted misconduct.
The tribunal emphasized that it does not have the authority to determine the reasonableness or legality of an employer’s policies.
Additionally, DM relied on a previous General Division case — A.L. v Canada Employment Insurance Commission, 2022 SST 1428 — which ruled in favor of an EI claimant who defied their employer’s mandatory vaccination policy. However, the Appeal Division pointed out that A.L. was issued after the General Division’s decision in DM’s case and is not a binding precedent.
Furthermore, the tribunal clarified that A.L. only applied to the specific circumstances of that case and did not provide a blanket exemption from vaccine mandates.
Lastly, the Appeal Division dismissed DM’s argument that his refusal to get vaccinated did not harm his employer’s interests due to working from home and minimal contact with colleagues or clients.
The tribunal upheld the General Division’s findings that the employer had the right to establish a vaccination policy, DM intentionally refused to get vaccinated despite being aware of the consequences, and he did not fall under any exceptions permitted by the policy.
As a result of the Tribunal’s decision, DM’s appeal will not proceed, and the General Division’s ruling denying his EI benefits stands.
For more information, see DM v Canada Employment Insurance Commission, 2023 SST 281 (CanLII)
