In a recent ruling, the Social Security Tribunal of Canada’s Appeal Division has refused permission for an appeal, effectively halting the case of TV, an aqua-fitness instructor seeking Employment Insurance (EI) benefits.
The decision came after the Claimant challenged a General Division ruling that denied her benefits due to her failure to comply with her employer’s COVID-19 vaccination policy.
TV had been working as an aqua-fitness instructor at a municipal community center when, on Oct. 13, 2021, the municipality placed her on an unpaid leave of absence for refusing to provide proof of vaccination. The Canada Employment Insurance Commission determined that her non-compliance with the vaccination policy constituted misconduct, leading to the denial of her EI benefits.
The General Division, in agreement with the Commission, concluded that TV knowingly violated her employer’s vaccination policy, fully aware of the disciplinary measures that could result from her actions. Despite the Claimant’s argument that the policy was imposed without her consent and that it infringed upon her rights, the General Division maintained that misconduct did occur due to TV’s deliberate refusal to disclose her vaccination status.
The Claimant sought permission to appeal the General Division’s decision, contesting that the errors made included disregarding the introduction of a new condition of employment without her agreement, failing to consider a relevant case called A.L. v Canada Employment Insurance Commission, and ignoring the protections under the Canadian Bill of Rights.
However, the Social Security Tribunal’s Appeal Division reviewed the evidence, law, and the General Division’s decision and concluded that TV did not have an arguable case. The Appeal Division found that the General Division had accurately assessed the evidence, highlighting TV’s intentional refusal to disclose her vaccination status or comply with regular testing.
It emphasized that the employer had the right to establish and enforce a vaccination policy, and the Claimant was aware of the potential employment consequences for failing to adhere to it.
The Appeal Division also affirmed that misconduct does not require explicit intent, stating that TV’s deliberate actions, regardless of her belief that they did not harm her employer, constituted misconduct under the law.
It further clarified that employment contracts do not need to explicitly define misconduct and that the employer’s policy and the employee’s deliberate disregard of it were the key factors in this case.
The Claimant’s reference to a similar case, A.L., was dismissed by the Appeal Division. It noted that the Claimant had not raised A.L. during the General Division proceedings and highlighted that decisions made by the General Division are not binding on its members.
Moreover, the Appeal Division determined that A.L. did not provide a broad exemption from mandatory vaccine policies but instead involved a claimant with a specific provision in their collective agreement.
Consequently, the Appeal Division refused permission to appeal, ruling that T. V.’s case had no reasonable chance of success. As a result, the appeal will not proceed, and the General Division’s decision to deny EI benefits stands.
For more information, see TV v Canada Employment Insurance Commission, 2023 SST 275 (CanLII)
