HR Law Canada has covered quite a few rulings over the last year dealing with workers who were denied employment insurance (EI) benefits because they lost their jobs due to “misconduct” by refusing to get vaccinated for COVID-19. Most of those rulings have come out of the Social Security Tribunal General and Appeal Divisions.
One of those decisions was appealed to the Federal Court of Appeal — and it confirmed the rulings by the lower tribunals to deny EI benefits to the worker for not adhering to his employer’s vaccination policy.
The applicant argued that the vaccination policy was not only unreasonable, as it did not offer alternatives to vaccination, but also that it was not part of his initial employment contract, introduced after he was hired. He contended that his non-compliance did not constitute a breach of contract or misconduct.
The Appeal Division evaluated previous decisions related to the definition of “misconduct” and maintained that the reasonableness of the employer’s policy was irrelevant to the misconduct determination.
An employee who deliberately breaches an explicit policy set by his employer may be found to have committed misconduct under the Act, the Appeal Division noted, reinforcing its stance with precedents such as Nelson v. Canada (Attorney General), 2019 FCA 222.
Justice Heckman, writing for the court, supported the Appeal Division’s rationale.
“In our view, the Appeal Division’s decision is reasonable. It is supported by the evidentiary record and, as this Court has observed in recent decisions involving similar circumstances,” said the Court.
“The Appeal Division reasonably found that, in determining whether the applicant committed misconduct under the Act, it cannot assess the reasonableness of the employer’s vaccination policy that led to his dismissal. We note that the applicant can raise that issue by way of other avenues, such as a wrongful dismissal action or a human rights complaint,” it said.
Furthermore, the court addressed claims of procedural unfairness raised by the applicant, who felt blindsided by the legal principles outlined at his hearing. However, the court found that the hearing was conducted fairly and without bias.
No costs were awarded.
For more information, see Palozzi v. Canada (Attorney General), 2024 FCA 81 (CanLII).
