A woman fired for failing to provide proof of Covid-19 vaccination won her plea to receive employment insurance after taking her case to the Social Security Tribunal of Canada (SST).
“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.”
Last year, Employment and Social Development Canada (ESDC) pushed to punish unvaccinated individuals by denying them the ability to receive employment insurance.
The ESDC issued a notice to employers with vaccine mandates, which instructed them to indicate that fired unvaccinated employees quit, were dismissed, or took a leave of absence, which would increase the likelihood they’d be ineligible to receive EI.
Employment Minister Carla Qualtrough said the coercion was necessary to ensure the labour force had enough workers.