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Federal tribunal rules in favour of fired delivery driver denied EI for not taking covid shots

“The government’s treatment of Mr. Conlon and other vulnerable Canadians on the basis of their personal medical decisions has been a gross abuse of their bodily autonomy and constitutional rights.” –Marty Moore, JCCF lawyer

The Justice Centre for Constitutional Freedoms announced on September 16th the Decision of the Social Security Tribunal of Canada, reversing the denial of EI benefits to Timothy Conlon, who lost his job for not getting the covid shots.

Mr. Conlon served as a delivery driver in the Toronto area, providing direct delivery of personal care items to homes. He would deliver sealed packages to peoples’ homes, buzz the doorbell and depart. He had little, if any interaction, with customers. Mr. Conlon was apparently an exemplary employee with no complaints against him.

Despite this, his employer demanded that he get the covid shots. Mr. Conlon expressed concerns about his existing high blood pressure and the reports of some individuals getting blood clots after taking the shots. When Mr. Conlon said he wasn’t going to get the shots, his boss told him not to come back to work.

Mr. Conlon was immediately thrown into financial crisis, which was compounded when Service Canada denied his claim for Employment Insurance benefits. He was unable to afford the purchase of a transit pass, and he relied on friends to chip in to cover his payments for shared rental accommodation.

Service Canada denied Mr. Conlon’s claim for EI benefits on the basis that his decision to decline covid shots because of his personal medical concerns amounted to employment “misconduct.”

Mr. Conlon’s experience is not unique. Service Canada and the Canada Employment Insurance Commission are insisting that employees terminated for not getting the covid shots have been suspended due to their own “misconduct,” and consequently have denied them benefits under s. 31 of the Employment Insurance Act. Such decisions echo comments made by Minister Carla Qualtrough, who stated that those fired for refusing vaccination shouldn’t be eligible for EI benefits.

As reported in Blacklock’s Reporter, last October 21st Qualtrough told reporters unvaccinated workers could be denied federal benefits. The Employment Insurance Act does not define workplace “misconduct” or contain any reference to permissible firing over immunization status.

“It’s a condition of employment that hasn’t been met and an employer choosing to terminate someone for that reason would make that person ineligible for Employment Insurance,” said Minister Qualtrough, adding: “My current thinking on it is that’s a choice, of course not counting medical exemptions or valid reasons for not having the vaccination.”

The Justice Centre warned Minister Qualtrough in a June 2022 letter that her Ministry of Employment, Workforce Development and Disability Inclusion is acting illegally and in violation of Charter rights by denying EI benefits to Canadians fired for not taking the covid-19 vaccines.

Justice Centre lawyers currently represent a number of people challenging the denial of their EI benefits, including Mr. Conlon.

The Social Security Tribunal found that the government failed to prove that Mr. Conlon committed misconduct in not getting the covid shot.

“Claimants who lose their job because of misconduct or voluntarily leave their employment without just cause are not entitled to receive Employment Insurance benefits,” wrote the Social Security Tribunal. However in the Conlon case “he had only been given two days to be vaccinated for Covid-19 or he was told he would have to quit,” Blacklock’s quotes the Tribunal.

“To be ‘misconduct’ under the law the conduct has to be wilful,” wrote the Tribunal. “This means the conduct was conscious, deliberate or intentional.” Conlon was a longtime employee with a spotless record whose conduct “was not wilful, conscious or deliberate,” it said.

“The employer may have the authority to develop and impose policies at the workplace,” wrote the Tribunal. “However employees ought to be given a chance to understand the policy, to know what is required, to have an opportunity to review or ask questions and be given enough time to comply.”

“The Justice Centre will continue to pursue legal challenges to the denial of EI benefits to Canadians based on their personal medical decisions,” states Marty Moore, a lawyer with Justice Centre.

“The government’s treatment of Mr. Conlon and other vulnerable Canadians on the basis of their personal medical decisions has been a gross abuse of their bodily autonomy and constitutional rights.”