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Canada Employment Insurance Commission contractor awarded EI despite being turfed for refusing to disclose vaccination status

by HR Law Canada

A former contractor with the Canada Employment Insurance Commission has been awarded EI benefits after having his contract terminated for refusing to disclose his vaccination status during the COVID-19 pandemic.

He had been suspended on Dec. 13, 2021, for failing to disclose his vaccination status, in line with his employer’s COVID-19 vaccination policy. The policy, implemented by the Government of Canada on Oct. 6, 2021, mandated employees to disclose their vaccination status or face administrative leave without pay.

The Social Security Tribunal of Canada ruled that the policy in question did not clearly state that non-disclosure of vaccination status could result in job loss.

Three main issues

The tribunal dealt with three principal questions:

  1. Whether the worker was suspended due to misconduct under the law.
  2. Whether the worker lost his job because of misconduct under the law.
  3. Whether the worker had a good reason for delaying his application for Employment Insurance (EI) benefits.

Appeal partially allowed

The court determined that the appellant’s suspension was legally defined as misconduct since he was aware that non-disclosure could result in suspension.

However, his job loss did not meet the legal criteria for misconduct because the employer’s policy did not specify that he could lose his job for the same reason.

The tribunal said: “Based on the terms of the policy, the Appellant would have no reason to think he could lose his job for not disclosing his vaccination status.”

Delay in EI application

The worker didn’t immediately apply for EI benefits, and the tribunal found there was no valid reason for the delay.

The appellant applied for EI benefits on July 13, 2022, and requested the application to be backdated to Dec. 12, 2021. He failed to establish that he had “good cause for the delay” as per the legal criteria.

Employer and employee accounts

The employer stated that his fixed-term contract, which ended on April 1, 2022, was not renewed due to his failure to disclose his vaccination status. According to the appellant, he wasn’t informed that non-disclosure could lead to non-renewal of his contract.

The employer argued that the appellant was aware of the vaccination policy and chose not to disclose his status. The appellant’s union also declined to challenge the employer’s vaccination policy.

The ruling

The tribunal allowed the worker’s appeal, in part. It noted the employer had proven that the worker knew he could be suspended on Dec. 13, 2021, for not following its COVID-19 vaccination policy.

However, the employer had not proven he knew — or should have known — that he could lose his job on April 1, 2022, for misconduct.

And, since there was no good reason for the six month plus delay in filing a claim for EI, the tribunal refused to post-date his application to Dec. 12, 2021. The worker’s claim for EI was effective July 10, 2022.

For more information, see PT v Canada Employment Insurance Commission, 2023 SST 844 (CanLII)

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