A claimant identified as OK has been denied permission to appeal a decision regarding Employment Insurance (EI) benefits by the Social Security Tribunal of Canada Appeal Division.
The ruling addressed the claimant’s employment suspension due to his refusal to get vaccinated for COVID-19.
OK, a former recreation therapist at a regional hospital, had his employment suspended on Dec, 3, 2021, following his refusal to comply with the hospital’s mandatory COVID-19 vaccination policy. Subsequently, the Canada Employment Insurance Commission deemed that OK was not eligible for EI benefits, citing his non-compliance as misconduct.
Worker was aware his actions could lead to dismissal
The General Division previously held a teleconference hearing and dismissed the claimant’s appeal, finding that OK had intentionally violated the hospital’s vaccination policy. The Division concluded that he was aware that his actions could likely lead to dismissal.
In his pursuit to appeal the General Division’s decision, OK argued that the vaccination policy was unclear and that the Division had erred in its application of relevant cases and principles. Specifically, he contested the Division’s interpretation of the cases Bellevance, Lemire, Rizzo & Rizzo Shoes, and its failure to apply the KVP test, which assesses policies established outside of collective agreements.
Upon reviewing the General Division’s decision and relevant law, the tribunal member concluded that the claimant did not present an arguable case. The tribunal member highlighted that the General Division had the discretion to assess evidence and that its findings reflected the claimant’s own testimony and the hospital’s vaccination policy documentation.
The policy, which required proof of full vaccination by a specified date, was deemed clear and indicative of potential disciplinary consequences, including suspension or termination, for non-compliance.
Employment contracts don’t need to define misconduct
Addressing the claimant’s arguments, the tribunal member reiterated that misconduct under the Employment Insurance Act (EI Act) includes deliberate actions contrary to an employer’s policies. The tribunal member also emphasized that employment contracts do not need to explicitly define misconduct.
The claimant’s refusal to comply with the vaccination policy, deemed a condition of his employment, was found to render him unable to fulfill his job duties.
Furthermore, the tribunal member noted that recent Federal Court decisions give employers considerable leeway to implement COVID-19 policies and that such decisions were consistent with the approach to misconduct in the context of vaccination mandates.
In conclusion, the tribunal member found no reasonable chance of success for the appeal and refused permission for it to proceed, effectively ending the matter.
For more information, see OK v Canada Employment Insurance Commission, 2023 SST 1195 (CanLII)
