Types of Law – Employment – J4EIM

The Federal Court of Appeal dismissed an Application for Judicial Review on Wednesday. This challenged the decision of the Social Security Tribunal (S.S.T.) to refuse a man employment insurance (E.I.) for not taking the injections in late 2021.

While the issue of people suing or grieving after losing their jobs has been covered here extensively, E.I., has not been addressed nearly enough.

Until recently, it was normal that a person would be considered “constructively dismissed” if the employer made significant changes, or imposed new conditions. It would be seen as a repudiation of the employment contract. He or she would be able to walk away.

But that effectively ended in 2021. Suddenly, refusing experimental shots was to be viewed as “misconduct” and “insubordination”. The S.S.T. would treat it as such, instead of evaluating cases individually. They realized that the fund could not afford tens (or hundreds) of thousands of people walking away from their jobs, and getting benefits.

Appellate Court Saw Nothing Wrong With S.S.T.’s Reasons

In dismissing the case, the Court of Appeal agreed with the S.S.T. in several areas.

A: Misconduct for purposes of the EI Act does not imply that the conduct in question was the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate or intentional (paragraph 20 of the Decision).

B: The General Division’s role was to assess (i) whether Mr. Arnold was guilty of misconduct, and (ii) whether that misconduct led to his dismissal (paragraph 21 of the Decision).

C: It was not for the General Division to focus on the conduct of the employer or to consider whether the Vaccination Policy was reasonable or whether the imposition of the Vaccination Policy violated the employment law relationship because those concerns fall outside of EI law; the General Division had to focus on Mr. Arnold’s conduct (paragraphs 34, 36, 37 of the Decision).

D: Any question of accommodation, violation by Purolator of the law or the collective bargaining agreement in imposing the Vaccination Policy, or any violation of Mr. Arnold’s human or constitutional rights, is a question for another forum (paragraphs 38 and 40 of the Decision)

In short, the S.S.T. has no jurisdiction to look at: (a) intent; (b) the employer’s conduct; (c) whether the changes violated the contract; (d) violation of collective bargaining agreements; (e) human rights; or (f) constitutional rights. Any of these should have been sufficient to at least consider whether or not there was justification.

How Does This Case Differ From Other E.I. Ones?

This case went into significantly more detail than similar ones, and raises real questions about fairness, impartiality, and possible corruption. Other former workers just wanted to be compensated.

(a) First, the Applicant alleges that the rules had been altered specifically to make it “misconduct” to refuse an employer’s demand for employee vaccination.

(b) Second, that the decisions had prepared ahead of time with various “templates” depending on which grounds workers cited in refusing the shots.

(c) Third, that it was a “business decision” to mass refuse applications, since the E.I. fund was legally required to be revenue neutral. It simply did not have the funds to pay out anywhere near the full amount of employees.

(d) Fourth, the Applicant went into some of the data about the rates of applying, and getting approved for E.I. in 2021/2022, compared to other years in the same time period.

Category: J4EIM

Justice For EI Misconduct, Part 1: Court Of Appeal Dismisses Case

Appellate Court Saw Nothing Wrong With S.S.T.’s Reasons

How Does This Case Differ From Other E.I. Ones?

Timeline Of Proceedings With Federal Court Of Appeal

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Appellate Court Saw Nothing Wrong With S.S.T.’s Reasons

How Does This Case Differ From Other E.I. Ones?

Timeline Of Proceedings With Federal Court Of Appeal

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