Employee Denied EI After Willingly Violating COVID Policy

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In a recent judicial review of the Social Security Tribunal’s decision to deny an employee Employment Insurance following dismissal for cause, it was found that the employee’s knowing violation of the employer’s COVID-19 policy resulted in a finding of misconduct that disqualified him from collecting Employment Insurance benefits.

Background

The employer ran a hospital in Ontario. The employee worked for the employer in various roles from 2017 until his dismissal for cause in 2021. The employee was dismissed because of his failure to comply with the employer’s policy regarding COVID-19 vaccinations and testing.

While the employer did not have its own specific COVID-19 policy, it followed the rules set out in a directive issued by Ontario’s Chief Medical Officer of Health. Under this directive, all employees were required to either:

  • Submit proof of full vaccination against COVID-19;
  • Submit written proof of a medical reason for not being fully vaccinated and an effective time period for the medical reason; or
  • Submit proof of completing an educational session approved by the employer about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason.

Any employee who rejected vaccination for a medical reason or for a non-medical reason was required to undergo regular antigen testing for COVID-19 and demonstrate a negative result at least once a week.

The employer informed its entire workforce about its policy in many ways. Firstly, the employer sent out a notification of the directive on September 1, 2021. The employer then ensured that staff were notified of the directive many times afterwards, both by Email and verbally.

The employee rejected vaccination for a non-medical reason but also refused to provide antigen test results. As a result, the employee was placed on unpaid leave in September 2021 and dismissed in October 2021. Although the employee claimed to be unaware of the policy, he later admitted he had heard through the “grapevine” that non-compliance would lead to a mandatory leave of absence, followed by termination.

Upon dismissal, the employee applied for Employment Insurance and was denied. In its denial, the Canada Employment Insurance Commission found that the employee had lost his job due to misconduct. The employee applied for reconsideration, which was denied, and then sought permission, or “leave,” to appeal the decision within the Social Security Tribunal, which was also denied based on the fact that the appeal had no reasonable chance of success.

This led the employee to seek before the Federal Court a judicial review of the Social Security Tribunal’s decision to deny him leave to appeal. The Federal Court upheld the Social Security Tribunal’s decision to deny employment insurance as reasonable.

Analysis

In this ruling, the employee admitted he had heard about the consequences of non-compliance with the policy. The employee had received repeated notifications of the policy both verbally and over Email. Furthermore, the employee had the opportunity to fix his behaviour when he was suspended. The employee admitted that he failed to change his behaviour after his suspension. While the employee argued that the employer had failed to answer his questions about its COVID-19 policy to his satisfaction, his disagreement with the policy and the employer’s efforts to educate him on the policy did not exempt him from discipline.

The employee’s knowledge of the policy and its consequences and his willingness to violate it anyways classified his wrongful conduct as “misconduct.” Misconduct in this sense referred to the fact that, not only had the employee broken the rules, he had done so with full knowledge that he was breaking the rules and that there could be consequences for doing so. Given that the employee had knowledge of the policy and violated it anyways, the employer was right to discipline him for misconduct.

While this case ultimately resulted in a dismissal for cause, the specific issue in this decision was the Social Security Tribunal’s denial of the employee’s application for Employment Insurance. This decision was integrally connected to the employer’s disciplinary decision because both relied upon the fact that the employee had committed misconduct. As a result of knowingly violating policy and being dismissed as a result, the employee was also disqualified from collecting Employment Insurance.

Takeaways

Understanding what is required to meet the legal standard of misconduct is crucial to avoiding risks of liability when considering the dismissal of an employee. Although counterintuitive, there is a real difference between wrongful conduct and misconduct in the eyes of the legal system. While misconduct is grounds for discipline up to and including dismissal, wrongful conduct is not necessarily grounds for discipline of any kind. When an employee acts in a way that violates an employer’s policy, he or she may be completely unaware of their transgression. While policy has been violated, the employee’s wrongful conduct can often be easily corrected by informing him or her of the policy.

The key distinction between misconduct and wrongful conduct is that, while misconduct implies that an employee has engaged in conduct that is wrongful or inappropriate, it also involves a mental component. To commit misconduct, an employee must have known or ought to have known that his or her conduct would impair the performance of the duties owed to his or her employer. The employee must also have known or ought to have known that dismissal was a real possibility as a consequence of that conduct.

Employers can take from this ruling an important lesson in understanding how to react to employees that violate policy. When an employer believes an employee may have violated its policy, it is crucial to learn whether or not the employee had any knowledge of the policy in the first place. If not, the best course of action involves educating the employee regarding the policy without taking disciplinary action. After all, the employer may realize that in some respect the employee’s lack of knowledge is a result of its own failure to communicate policy effectively.

However, if an employer comes to understand that the employee was aware of the policy and chose to violate it anyway, it may have grounds to institute discipline. How to discipline an employee that has willingly violated policy depends both on the misconduct and the policy itself. In this ruling, the employer’s COVID-19 policy stated that violations may result in an employee’s dismissal. The employee was aware that violating the policy could jeopardize his employment and decided to do so anyways. By knowingly engaging in conduct that violated the employer’s COVID-19 policy, the employee put his work in jeopardy and ultimately justified the employer’s decision to dismiss him for cause.

While this decision is not strictly about discipline, it does provide employers a guide for understanding the concept of misconduct. Understanding this concept gives employers a helpful tool that can help them understand employee actions that violate workplace policy.

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