Refusal to comply with policy was misconduct under federal EI Act
A health-care worker’s refusal to get vaccinated against COVID-19 was voluntary misconduct that led to his dismissal and disentitled him to employment insurance benefits, the Federal Court has ruled.
The worker was an information technology analyst for the Toronto General Hospital’s Universal Health Network (UHN) since 2006. The worker generally worked half of his time at home and half in the office and rarely interacted with other staff or patients. When the COVID-19 pandemic arrived in March 2020, he worked full-time at home.
In August 2021, the UHN implemented a COVID-19 vaccine policy that followed a public directive requiring all public health employees to prove their vaccination record or apply for a medical or human rights exemption.
The UHN sent several communications to employees reminding them of the vaccination requirement and that it applied to all employees unless they received an exemption. On Sept. 13, an email to all staff clarified that employees who worked remotely all the time could be exempted, but each case would be reviewed on its own merits. However, the vast majority were not remote-only and could be recalled to the office at any time.
Request for exemption denied
On Sept. 21, the worker requested an exemption on human rights grounds. The UHN rejected his request because it was due to the fact that the worker disagreed with the policy and he didn’t identity a ground protected under the Canadian Human Rights Code. The UHN informed the worker that he would be terminated on Oct. 22 if he didn’t provide proof of at least one dose of the COVID-19 vaccine.
The worker did not get vaccinated and the UHN terminated his employment on Nov. 2.
The worker applied for employment insurance (EI) benefits, but his application was denied because the EI commission determined that he had lost his job due to his own misconduct. The worker appealed, but the decision was upheld.
The Social Security Tribunal General Division agreed that the worker was dismissed because he refused to follow the UHN’s vaccination policy, which was designed to protect staff and clients. This refusal met the definition of misconduct disqualifying someone from EI benefits under the EI Act because it was an intentional breach of the worker’s employment obligations, said the tribunal.
Deliberate choice not to follow policy
The worker appealed, but the tribunal’s Appeal Division denied leave to appeal, finding that the worker made “a personal and deliberate choice not to follow the employer’s policy, which resulted in him being terminated from his employment for misconduct.” The worker knew about the policy and the consequences for not following it when he made his voluntary decision not to get vaccinated, said the tribunal, adding that the UHN had an obligation to take all reasonable precautions to protect the health and safety of employees, and the policy was a reasonable precaution in the circumstances.
The worker took his case to the Federal Court, arguing that the denial of leave to appeal was unreasonable. He argued that the tribunal’s appeal division misinterpreted the term “misconduct” and erred in determining that his refusal to be vaccinated was misconduct under the EI Act. He maintained that his decision to not get vaccinated was not voluntary misconduct, but an “unavoidable consequence of the employer’s intimidating tactics.”
The court noted that for misconduct to be worthy of dismissal, it must constitute a breach of an express or implied duty resulting from the contract of employment. In this case, although the vaccine policy was not initially part of the worker’s employment contract, it was a workplace safety policy that was implemented to protect employee health and safety and imposed an obligation on all employees. The worker was well-informed of the policy and was given time to comply, but the worker didn’t take steps to comply, said the court, noting that the worker was not granted an exemption.
The court found that it was irrelevant that the vaccine policy wasn’t in the worker’s employment agreement, as COVID-19 was unknown at the time it was drawn up and the UHN has added it to the list of immunizations required for its employees. The vaccine policy was a written policy communicated to the worker for health and safety reasons and the initial employment contract did not comprise the complete terms of the worker’s employment, the court said.
“It is well accepted in labour law that employees have obligations to abide by the health and safety policies that are implemented by their employers over time,” said the court.
The court found that the decisions of the Social Security Tribunal’s general and appeal divisions were reasonable and had no errors of law. The worker had no reasonable chance of success in arguing that his actions did not constitute misconduct within the meaning of the EI Act, said the court in dismissing the worker’s appeal. See Kuk v. Canada (Attorney General), 2023 FC 1134.
