A significant decision that could influence future disputes involving workers who are fired or laid off without pay for not complying to a vaccine policy has been handed down by Canada’s Social Security Tribunal (SST).
On December 14th, Mark Leonard, a member of the employment insurance (EI) section of the tribunal’s general division, granted an appeal in favour of an appellant who was denied EI after she was fired for refusing to be injected with COVID-19 vaccines last year.
Like thousands of Canadians who were fired for not complying to their employers' no jab no pay policy, Ms. Annette Lance made the personal choice not to be inoculated due to concerns about how experimental COVID-19 jabs could affect her health. According to the Ontario Civil Liberties Association, Lance’s reservations stemmed from having adverse reactions to anesthetic surgery and having cancer as a child.
Despite such valid concerns, Lance was never accommodated by her employer to allow her to continue working in her hospital administration position, and the Canadian Employment Insurance Commission declined her application to receive EI claiming that her refusal to be jabbed was “misconduct.”
While Canada’s Employment Insurance Act does prohibit the government from granting citizens who are fired for misconduct EI, Tribunal member Leonard disagreed with the Commission's ruling that choosing not to get COVID-19 vaccines is misconduct.
Although Leonard did not have jurisdiction to rule on whether Lance’s employer's termination was lawful or not, he did acknowledge Lance's right to decline COVID-19 vaccines. “There is no Federal or Provincial legislation that demands Covid-19 vaccination and therefore vaccination against Covid-19 remains voluntary,” Leonard explained in his reasoning.
Leonard also added it is “long recognized in Canadian common law that an individual has the right to control what happens to their bodies,” and that if vaccination is voluntary then Lance should have the chance to reject it. “If she exercises a right not to be vaccinated, then it challenges the conclusion that her actions can be characterized as having done something 'wrong' or something she should not have done.”
Ultimately, Leonard concluded that Lance’s appeal is allowed as the Commission failed to prove that Lance “was suspended or lost her job because of misconduct” and thus she is not “disqualified from receiving EI benefits.”
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