A former London Health Sciences Centre employee who was fired after he refused to take the COVID-19 vaccine is heading to the federal courts to argue his constitutional rights were violated when he subsequently was denied employment insurance benefits.
Robin Francis has applied to the Federal Court of Appeal for a judicial review of decisions made by the Canada Employment Insurance Commission and the Social Security Tribunal of Canada, which denied him benefits because of “willful misconduct” of the hospital’s pandemic policy.
Lawyer James Manson and the Justice Centre for Constitutional Freedoms, a social conservative legal advocacy organization, are advocating for him.
Documents filed with the court said Francis, who has a doctorate in engineering, was a decision support consultant, offering logistical, informational and technical support at the hospital from June 2015 until he was terminated in October 2021. During the pandemic, he was unvaccinated and worked from home.
On Aug. 31, 2021, he was sent an email from LHSC that said it was introducing a policy that all employees must be vaccinated. The policy took effect on Sept. 3, 2021. Francis told his manager he wouldn’t take the vaccine because of religious reasons and intended to continue following all the testing and sanitizing protocols.
Francis also submitted an affidavit to LHSC requesting a human rights exemption that Manson said was ignored. Two weeks later, in October 2021, Francis’s employment was terminated.
Francis discovered after he lost his job he couldn’t collect EI benefits. The employment insurance commission decided not to pay out his claim because of his “willful misconduct” of the hospital’s vaccination policy. Francis lost an appeal of the decision in February. Last week, the application was made for a further review at the federal appeals court.
Manson said the issue at hand has nothing to do with the LHSC’s decision to terminate Francis’s employment. What’s needs to be decided, he said, is if “misconduct” under the EI legislation can include any workplace policy that violates an employee’s constitutional rights and subsequently deny someone benefits if they lose their job.
Manson said it doesn’t make sense to him in a democracy that “(an) employer can draft any policy no matter how egregious and no matter how violating of the constitution or the Charter of Rights” and if someone asserts their rights and loses their job, they would lose their benefits.
Also, Manson said, he would argue that Francis’s employment contract changed without negotiation requiring him to take “a medical treatment” he was refusing. That contract should be unenforceable, he said, and there should be no misconduct on the part of Francis by not complying with the policy.
The application to the Federal Court of Appeal noted the tribunal rejected Francis’s arguments on Feb. 17, 2023. Any review and decision won’t be expected until later this year.
Manson said regardless of the decision at the next level, he could see this case heading to the Supreme Court of Canada to decide what constitutes misconduct when “your fundamental rights and freedoms are involved.”
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