Bryan Passifiume

Publishing date: Sept 16, 2022 via the National Post

Members of a federal tribunal ruled in favour of a Toronto-area delivery driver denied Employment Insurance (EI) benefits after losing his job for refusing his employer’s COVID-19 vaccine policy.

Last summer, Timothy Conlon was dismissed from his job after turning down a request by his employer to get the COVID shot — a decision Conlon said was due to concerns over his existing blood pressure and reports of blood clots in some patients, read a press release from the Justice Centre for Constitutional Freedoms (JCCF) who represented Conlon and others who found themselves in similar situations.

Upon losing his job, Conlon applied for EI but was denied, as the Canada Employment Insurance Commission (CEIC) ruled he was dismissed due to misconduct.

“The Claimant disagrees because he was dismissed from his job two days after he was told about the policy,” wrote tribunal member Solange Losier in her decision released Friday.

“He says it was not willful misconduct. He argues that there were no complaints about his work performance, no reprimands about his conduct and employer failed to reasonably accommodate him.”

The loss of his job and denial of benefits sent Conlon into a financial catastrophe, said the JCCF — relying on the goodness of his friends to help support him.

In her decision, Losier noted that Conlon never received written documentation, either before or following his employer’s verbal direction to get the COVID shot, and was told he had just two days to get the shot or resign his position.

When he refused to quit, Conlon said he was fired.

Conlon’s employer denied firing Conlon for cause, initially claiming he was taking an Infectious Disease Emergency Leave (IDEL,) despite him not testing positive for COVID or even reporting being sick.

An ROE issued nearly two months after Conlon stated he was on IDEL leave.

Losier ruled Conlon’s concerns did not meet the criteria for willful misconduct under the law.

“The employer did not provide him with sufficient time to comply with their verbal direction,” the decision read.

“Instead, the employer abruptly dismissed him on July 9, 2021 after providing him with written documentation about an IDEL leave to read.”

Last year, federal Employment and Workplace Development Minister Carla Qualtrough insisted that anybody who lost their job for refusing the COVID-19 vaccine would not be eligible for EI benefits.

“As long as the collective public health of Canadians is jeopardized, and our economy is thereby threatened, we’re going to have to keep public health policy top of mind in our employment and labor and economic decision making,” she told Canadian Press in December.

Employment and Social Development Canada issued guidance to employers that anybody let go for refusing to comply with a vaccine mandate should be listed as “resigned” on their Record of Employment (ROE) — a move that would disqualify the person for receiving EI benefits.

“He did not consciously, deliberately, or intentionally breach the employer’s verbal direction,” the decision read.

“Also, his conduct was not reckless — he simply was not provided with enough time to comply and could not have known he would be dismissed for his conduct.

JCCF lawyer Marty Moore told the National Post that Friday’s decision was a positive step in battling what he described as a “gross abuse” of the bodily autonomy and constitutional rights of Canadians.

“We view this decision as a first step in our continuing fight against the federal government’s egregious denial of EI to vulnerable Canadians, solely on the basis of their personal medical decisions,” he said, accusing the federal government of categorially discriminating against Canadians who refused the shot.

“There was no justification for this discrimination, other than false public health messaging that the COVID shots stop transmission.”