Terminated for failure to follow vaccination policy? No EI for you.

Law360 Canada (May 9, 2024, 3:08 PM EDT) --

Mike Hamata

Talia Behrmann

 Are we done with COVID vaccination policy litigation? Not yet.

In Butu v. Canada (Attorney General), 2024 FC 321, the Federal Court dismissed the applicant’s, Adina Butu, application for judicial review of a decision denying her leave to appeal the denial of her employment insurance (EI) benefits.

Butu had been employed by the Toronto Public Library (TPL) as a clerk/caretaker.

In September 2021, the TPL introduced a COVID-19 vaccination policy. The policy had a two-step approach requiring employees to first disclose their vaccination status and later provide proof of vaccination or obtain an exemption. The TPL advised its employees that non-compliance with the policy could result in discipline, including dismissal.

Butu and her manager at the TPL exchanged correspondence throughout October 2021 regarding the policy. In these correspondences, Butu’s manager clearly communicated the requirements of the policy and that if Butu failed to comply, she would be suspended and eventually terminated.

After Butu failed to disclose and provide proof of her vaccination status, the TPL placed her on an unpaid suspension and subsequently terminated her.

Butu then applied for EI benefits. The Canada Employment Insurance Commission denied Butu’s application and reconsideration application, finding she did not qualify for EI benefits as she had been terminated due to her own misconduct (pursuant to section 30 of the Employment Insurance Act, SC 1996, c 23).

Butu appealed the commission’s decision to the Social Security General Division (SST-GD).

The SST-GD denied Butu’s appeal, finding: (1) Butu was terminated for failing to comply with the first step of the policy, and (2) Butu knowingly refusing to disclose her vaccination status was sufficient to establish misconduct.

Butu then sought leave to appeal the SST-GD’s decision to the Social Security Tribunal Appeal Division (SST-AD).

The SST-AD denied Butu leave to appeal, finding that the SST-GD had correctly interpreted the applicable legislation and that Butu’s appeal had no reasonable chance of success (see section 58 of the Department of Employment and Social Development Canada Act, SC 2005, c 34). In particular, the SST-AD held that the SST-GD:

• correctly interpreted the law in determining if Butu’s termination was due to her own misconduct;
• correctly assessed Butu’s knowing or deliberate disregard of the policy, and that such actions amount to misconduct; and
• correctly addressed that Butu was aware of the consequences of breaching the policy.

The Federal Court, after determining the standard of review was reasonableness, expressly acknowledged that a judicial review is not a “do over,” and that contrary to Butu’s position, neither the SST-GD nor the SST-AD overlooked any of her arguments.

The court held that both the SST-AD and SST-GD correctly identified and applied the proper legal test for misconduct under the applicable legislation. The test being not whether the dismissal is justified but, rather, whether the employee could normally foresee that their misconduct would likely result in their dismissal.

Further, the court held that the SST-GD and SST-AD correctly summarized the law on misconduct, which can manifest as a policy violation, even if the policy is not included in an employee’s original contract. The court also noted that it is not the role of the commission, the STTD-GD or the SST-AD to determine if an employer’s policies are reasonable, rather, they determine eligibility for EI benefits under the applicable legislation and jurisprudence. 

The court also held that Butu’s argument that the SST-GD and SST-AD did not consider evidence that her failure to comply with the policy did not interfere with her ability to perform her job duties was a mischaracterization of the relevant jurisprudence. The SST-GD did not need to determine whether Butu could perform her specific duties without being vaccinated. Rather, the SST-GD needed to determine whether Butu could fulfill her duty to the TPL to be able show up for work, which required compliance with the TPL’s policies.

Key takeaways/highlights:

• An employee’s eligibility for EI benefits does not involve considering if an employer’s policies are reasonable or if the employee’s termination was justified.
• An employee will not be eligible for EI benefits if their termination was a foreseeable consequence of their misconduct
• An employee’s misconduct, for the purposes of determining EI benefits, can include violating an employer’s policy, even one that was not included in their original offer of employment.
  
  

Mike Hamata is an employment and labour lawyer and a partner of Roper Greyell LLP in Vancouver. He practises in all areas of employment, labour and workplace human rights law and is a strong advocate for his employer and employee clients. Mike can be reached at mhamata@ropergreyell.com. Talia Behrmann is an articled student at Roper Greyell LLP. She is interested in all areas of labour and employment law

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