“I am persuaded that the Claimant has a right to choose whether to accept any medical treatment,”
said Tribunal member Mark Leonard.
The woman, who worked in a healthcare setting in Ontario, was fired in November 2021 for not showing proof of vaccination.
The Canada Employment Insurance Commission (CEIC) had determined her firing was due to “misconduct,” which prohibited her from being eligible for employment insurance (EI) as per the Employment Insurance Act.
But Leonard said her employer failed to prove her behaviour was “misconduct” as required. He said it was not misconduct under the law, and the Employment Insurance Act “doesn’t say what misconduct means.”
“But case law (decisions from courts and tribunals) shows us how to determine whether the Claimant’s dismissal is misconduct under the Act,” Leonard stated.
One criterion to prove misconduct requires that “there must be a breach on an expressed or implied duty arising out of her employment contract.”
The appellant had not signed a contract with her employer that required Covid vaccination.
The Commission argued the appellant was guilty of misconduct because the employer had conveyed the vaccine mandate multiple times — and that the appellant willfully chose not to follow it.
Leonard said the Collective Agreement the appellant had with her employer “expressly notes that employees have the right to refuse any recommended or required vaccination.”
“It appears that the Employer’s Covid-19 policy was unilaterally imposed upon the employees and Claimant without any consideration of the Collective Agreement and without consultation with the bargaining agent.”
Unvaccinated Worker Denied Employment Insurance for Jab Refusal Wins Tribunal Appeal
The federal tribunal that processes complaints related to Employment Insurance (EI) has sided in a Dec. 14 decision with a claimant who was fired for non-compliance with her employer’s vaccination mandate and then denied EI on the grounds of “misconduct.”
Tribunal member Mark Leonard of the Social Security Tribunal of Canada ruled on an appeal that the Canada Employment Insurance Commission (CEIC) had not proven that claimant A.L. had lost her job due to misconduct, which would preclude her from getting unemployment benefits.
A.L. worked in an administrative role in a hospital of the Huron Perth Healthcare Alliance which imposed a vaccination mandate on Sept. 7, 2021, further to a provincial directive. Employees not complying were put on unpaid leave in late October and then fired in mid-November.
The CEIC had determined that non-compliance with the employer’s vaccine policy constituted “misconduct.”
Leonard said the CEIC did not prove the claimant had failed to honour her employment contract.
He added that it appeared the vaccination policy was “unilaterally imposed upon the employees and Claimant without any consideration of the Collective Agreement and without consultation with the bargaining agent.”
Leonard said the collective agreement states that employees have the right to refuse any vaccination.
“To accept the premise that the employer can institute a policy demanding a specific type of medical treatment or face dismissal, changes a mere expectation of compliance with general health and safety protocols, into an essential condition of employment,” he wrote.
The decision also noted there is no provincial or federal legislation that imposes vaccination.
“The Commission has not proven that she had a duty to accept vaccination or provide an exemption. Consequently, it cannot be found that her decision to not be vaccinated, regardless of whether it violated the Employer’s policy, meets the criteria established by case law to arrive at a finding of misconduct.”
The decision also goes over the claimant’s reasons for refusing COVID-19 injections, which included the protection of her health and the right to bodily integrity.
“It is both well founded and long recognized in Canadian common law that an individual has the right to control what happens to their bodies. The individual has the final say in whether they accept any medical treatment,” says the decision.
Leonard qualified the claim to a “right to bodily integrity” as a “valid point.”
The Social Security Tribunal of Canada has processed many other similar cases since vaccination mandates appeared in Canada.
In another decision in September, the Tribunal also sided with claimant Timothy Conlon who was denied EI on the same grounds.
Tribunal member Solage Losier said she could not find that Conlon’s conduct was willful misconduct.
“He did not consciously, deliberately, or intentionally breach the employer’s verbal direction. Also, his conduct was not reckless. He simply was not provided with enough time to comply and could not have known he would be dismissed for his conduct,” wrote Losier.
But not all cases have gone this way.
A decision by the Tribunal in August sided with the Commission and against the claimant who was also fired for non-compliance with his employer’s vaccination policy.
“I find the Commission has proven there was misconduct, because it has shown the Claimant made the conscious, deliberate and willful decision to not comply with the employer’s policy when he was aware that not complying could lead to him being dismissed from his job,” wrote Raelene R. Thomas.