Employment Insurance (EI)

Persons in attendance

[1] The Appellant, N. P., did not participate in the telephone (teleconference) hearing held on February 17, 2014. She was represented by François Catineau, union advisor with the Syndicat de la fonction publique du Québec (SFPQ).

Decision

[2] The Social Security Tribunal (the Tribunal) finds that the appeal of the decision of the Employment Insurance Commission (the Commission) to impose on the Appellant a disqualification from receiving Employment Insurance benefits, on the grounds that she lost her employment because of her misconduct, is without merit under sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[3] On August 28, 2013, the Appellant, represented by François Catineau of the SFPQ, appealed to the Employment Insurance Section of the Tribunal's General Division the reconsideration decision rendered against the Appellant by the Commission on August 8, 2013, to uphold the disqualification from receiving Employment Insurance benefits on the grounds that she lost her employment because of her misconduct (Exhibits GD2-1 to GD2-15 and Exhibit GD3-31).

Type of hearing

[4] The hearing was held by teleconference for the reasons set out in the notice of hearing dated February 4, 2014 (Exhibits GD1-1 and GD1-2).

Issue

[5] The Tribunal must determine whether the appeal of the Commission's decision regarding the imposition of a disqualification on the Appellant from receiving Employment Insurance benefits on the grounds that she lost her employment because of her misconduct has merit or is justified under sections 29 and 30 of the Act.

Applicable law

[6] The provisions concerning misconduct are set out in sections 29 and 30 of the Act.

[7] Although the term misconduct is not defined in the Act, the case law stated in Tucker (A-381-85) that:

. . . in order to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance.

[8] In this decision (Tucker, A-381-85), Justice Mark R. Macguigan of the Federal Court of Appeal (the Court) repeated the words of Justice Reed of the Court that:

. . . Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces wilful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent. . . .

[9] In McKay-Eden (A-402-96), Justice McDonald of the Court specified that: "In our view, for conduct to be considered 'misconduct' under the Unemployment Insurance Act, it must be wilful or so reckless as to approach wilfulness." The Court confirmed the principle that there will be misconduct where the conduct of the claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional (Mishibinijima v. Canada (A.G.), 2007 FCA 36 (CanLII)).

[10] The Court defined the legal notion of misconduct within the meaning of subsection 30(1) of the Act as wilful conduct, where the claimant knew or ought to have known that his or her conduct was such that it would result in dismissal. To determine whether the misconduct could result in dismissal, there must be a causal link between the claimant's misconduct and the claimant's employment; the misconduct must therefore constitute a breach of an express or implied duty resulting from the contract of employment (Canada (AG) v. Lemire, 2010 FCA 314 (CanLII), ).

[11] The decisions in Luc Cartier (A-168-00) and Laurie J. MacDonald (A-152-96) maintained the principle established in Namaro (A-834-82) that it must also be established that the misconduct was the cause of the claimant's dismissal from employment.

[12] In Marion (2002 FCA 185 – A-135-01), Justice Gilles Létourneau of the Court noted as follows:

. . . The role of the Board of Referees was to determine not whether the severity of the penalty imposed by the employer was justified or whether the employee's conduct was a valid ground for dismissal, but rather whether the employee's conduct amounted to misconduct within the meaning of the Act: Fakhari and the Attorney General of Canada (1996), reflex, 197 N.R. 300 (F.C.A.); A.G.C. v. Namaro (1983), reflex, 46 N.R. 541 (F.C.A.); Canada v. Jewell (1994), 1994 CanLII 608 (ON CA), 175 N.R. 350 (F.C.A.); A.G.C. v. Secours (1995), reflex, 179 N.R. 132 (F.C.A.); Attorney General of Canada v. Langlois, A-94-95, February 21, 1996 (F.C.A.). This principle was reaffirmed in Linda Caul (2006 FCA 251 – A-441-05).

Evidence

[13] The evidence in the file is as follows:

1. (a) On June 6, 2013, the Appellant filed an initial claim for benefits. The Appellant stated that she worked for the employer Government of Quebec (Ministère de l'Éducation, du Loisir et du Sport) from March 24, 2009, to June 6, 2013, inclusive, and that she stopped working for the employer as a result of a dismissal or suspension (Exhibits GD3-2 to GD3-12);
2. (b) A Record of Employment (ROE), dated July 8, 2013, indicates that the Appellant worked as an [translation] "administrative technician" for the employer Ministère de l'Éducation, du Loisir et du Sport from March 23, 2009, to June 6, 2013, inclusive, and that she stopped working for the employer as a result of a dismissal (Code M – Dismissal) (Exhibit GD3-13);
3. (c) In a letter dated June 6, 2013, the employer (Service du recouvrement, Aide financière aux études – Québec) informed the Appellant that she was being dismissed and explained the reasons for the decision (Exhibits GD3-14 and GD3-15);
4. (d) In a document titled [translation] "Quebec – Grievance Form" indicating the date of June 6, 2013, as the [translation] "date of the event giving rise to the grievance," the Appellant indicated that she filed a grievance as a result of her dismissal (Exhibits GD3-16 and GD3-17);
5. (e) On July 3, 2013, the Appellant explained the reasons for her dismissal (Exhibit GD3-18);
6. (f) On July 10, 2013, the employer provided the Commission with a copy of the document titled [translation]: "AFE [AFE: Aide financière aux études] Staff Confidentiality Undertaking" signed by the Appellant on October 23, 2009 (Exhibit GD3-19);
7. (g) On July 22, 2013, the Commission notified the Appellant that she did not qualify for regular Employment Insurance benefits effective June 9, 2013, because she stopped working for the employer Ministère de l'Éducation, du Loisir et du Sport on June 6, 2013, because of misconduct (Exhibit GD3-20);
8. (h) On July 22, 2013, the Appellant filled out a Request for Reconsideration of an Employment Insurance (EI) decision. The Appellant explained the reasons for her request and attached a copy of the following documents:
   • Explanatory letter from the Appellant (Exhibits GD3-23 and GD3-24);
   • Excerpt from the Appellant's Employment Insurance file (Exhibit GD3-25);
   • Undated letter from the Appellant addressed to Lise Lallemand, Assistant Deputy Minister at "MESRST – Aide financière aux études et gouvernance interne des ressources" whose subject is the dismissal and the work environment (Exhibits GD3-26 and GD3-27);
   • Letter of dismissal dated June 6, 2013 (Exhibits GD3-28 and GD3-29) (Exhibits GD3-21 to GD3-29);
9. (i) On August 8, 2013, the Appellant provided additional explanations with respect to her dismissal (Exhibit GD3-30);
10. (j) On August 8, 2013, the Commission notified the Appellant that it was upholding the decision rendered against her dated July 11, 2013 (Exhibit GD3-31);
11. (k) On August 28, 2013, the Appellant, represented by François Catineau, union advisor with the SFPQ, filed a notice of appeal with the Employment Insurance Section of the Tribunal's General Division. The Appellant explained the reasons for her request and attached a copy of the following documents:
    • Explanatory letter from the Appellant submitted in her Request for Reconsideration (Exhibits GD2-5 and GD2-6);
    • Letter of dismissal dated June 6, 2013 (Exhibits GD2-7 and GD2-8);
    • Letter from the Appellant addressed to MESRST – Aide financière aux études et gouvernance interne des resources" (Exhibits GD2-9 and GD2-10);
    • Letter from the Commission dated August 8, 2013 (Exhibit GD2-11);
    • Request for Reconsideration of an Employment Insurance (EI) decision form dated July 22, 2013 (Exhibit GD2-12);
    • Appellant's ROE dated June 26, 2013 (Exhibit GD2-13);
    • Document [translation]: "Quebec – Filing status" dated May 30, 2013 (Exhibit GD2-14);
    • Document [translation]: "Quebec – Instrument of appointment – Casual employee" (contract extension) dated March 19, 2012 (Exhibit GD2-15), (Exhibits GD2-1 to GD2-15);
12. (l) On September 26, 2013, the Commission presented its submissions and found that the Appellant lost her employment because of her misconduct (Exhibits GD4-1 to GD4-8);
13. (m) On December 5, 2013, the Tribunal asked the Commission to provide it with a complete copy of the Appellant's claim for benefits and whether the Appellant's employer had submitted documents related to the Appellant's dismissal (Exhibit GD5);
14. (n) On December 9, 2013, the Commission stated to the Tribunal that no additional document from the employer had been submitted to it. The Commission also provided the Tribunal with a complete copy of the Appellant's claim for benefits (Exhibit GD6-1 and Exhibits GD6A-1 to GD6A-18);
15. (o) In a letter dated February 4, 2014, the Tribunal informed the Appellant that the date of her hearing was set for Monday, February 17, 2014 (Exhibits GD2-1 and GD2-2).

[14] The evidence presented at the hearing is as follows:

1. (a) The Appellant's representative, François Catineau, union advisor with the SFPQ, noted the circumstances that led to the Appellant's dismissal for consulting personal files.

Submissions of the parties

[15] The Appellant and her representative, François Catineau, made the following observations and submissions:

1. (a) The Appellant explained that she was dismissed for consulting her children's file and that of her spouse on numerous occasions. She argued that she knew that she was not entitled to intervene in those files, but that she did not know that she was not entitled to consult them. She argued that she does not consider the act of which she is accused as being misconduct, but as ignorance on her part or as a lack of understanding of public service legislation, and that she therefore disagrees with the decision rendered against her by the Commission (Exhibits GD3-18, GD3-21 and GD2-5);
2. (b) She also argued that she explained to her employer that she did not commit the acts of which she is accused to [translation] "cause harm." She indicated her disagreement with her employer with respect to the frequency reported by the employer of consulting the files. She explained that she was not the only one to have done so and that it did not occur to her that there could be consequences (Exhibit GD3-18);
3. (c) She stated that she remembered signing a confidentiality document at the time of her hiring when she was shown the document during her meeting with her employer in May 2013. She justified the acts of which she is accused by stating that she signed the document in 2009 and that she could not remember everything. She stated that it was not until May 2013, after her meeting with her employer, that she understood that she should not consult or look at files other than those assigned to her to fulfill the mandates given to her (Exhibits GD3-18 and GD3-30);
4. (d) She argued that she was never told by her employer not to consult her spouse's personal file, and was only told not to perform any [translation] "physical transactions," which she never did after receiving her first warning. She stated that since she had a power of attorney for her children's and her husband's files, she mistakenly believed that this authorized her to consult without taking action (Exhibits GD2-6 and GD3-30);
5. (e) She explained that after the meeting with her employer on May 15, 2013, she never consulted any file regarding her family again, that she therefore did not recommit the acts of which she is accused, but that her employer did not take that into consideration and that she was, nevertheless, dismissed on June 6, 2013 (Exhibits GD2-5, GD2-6 and GD3-30);
6. (f) She submitted that other factors were the cause of her dismissal. She mentioned that the manager, France Giroux, had a [translation] "personal vendetta" against her because she granted tenure to other employees with less seniority, and that the manager inflicted [translation] "psychological harassment" on a number of employees (Exhibits GD2-5, GD2-6, GD2-9 and GD2-10).
7. (g) The Appellant's representative, François Catineau, explained that he noticed certain shortcomings with respect to the warnings given to the Appellant and the preventive measures that the employer could have taken against her regarding the risks associated with consulting personal files;
8. (h) He mentioned, as an example, that in 2012, the employer noted very generally and quite summarily the obligations to which employees were subject, the rules of conduct within the public service and the possible consequences of consulting personal files. He indicated that in the message delivered in 2012, a reminder of ethics in the public service (code of ethics) was issued, but that it was a very broad message referring to a more complete document, which employees do not always have the time to read;
9. (i) He argued that the Appellant neither disclosed nor made personal use of the information derived from her consultations;
10. (j) He indicated that while he did not have [translation] "a very, very strong case," he could raise an arguable case that the Appellant had not been made aware of her obligations in that regard;
11. (k) He also mentioned that in other government institutions (e.g. the Ministère de l'Enseignement supérieur, de la Recherche, de la Science et de la Technologie, Revenu Québec), employees are more aware of issues pertaining to the consultation of personal files and the possible consequences in such cases (e.g. annual signature of statements, issues to be addressed with managers);
12. (l) He argued that, in this case, similar measures were not taken by the employer and that if this had been the case, the Appellant would have perhaps received a disciplinary action other than dismissal;
13. (m) He stated that at Revenu Québec, annual one-on-one meetings are held between employees and managers to raise awareness about conflicts of interest or the perception of conflicts of interest, the consultation of files, etc., and that a notice or message of awareness appears every morning when employees log on. He indicated that since the implementation of such actions, there are now fewer dismissals and fewer disciplinary actions for issues relating to the confidentiality of information;
14. (n) He noted that a grievance was filed by the Appellant in this case but that it had yet to be heard;
15. (o) He mentioned that there could be a gap at the Ministère de l'Éducation, du Loisir et du Sport in terms of how people are made aware of the importance of maintaining the confidentiality of personal data;
16. (p) He argued that in applying progressive discipline, the employer could give the Appellant a second chance by imposing a disciplinary action other than dismissal;
17. (q) He noted that there is no progressive discipline provided for in the collective agreement to which the Appellant was subject, but that the case law states that the employer must [translation] "act like a reasonable person" and that adjudication decisions have addressed this issue, indicating that progressive discipline must be provided for (e.g. warning – reprimand – suspension days – dismissal);
18. (r) He argued that dismissal was too severe in the Appellant's case, especially since she rectified her behaviour and did not know that her actions were illegal. He explained that the Appellant's file was still active and submitted that an adjudicator could, without exonerating the Appellant, convert her dismissal into an exemplary suspension (a suspension equal to the duration of her absence);
19. (s) He indicated that it may be thought that actions were taken prior to the Appellant's dismissal, but argued that the Appellant never used the information she accessed. He noted that she only looked at the evolution of her children's file, which is not as [translation] "harmful" as it would have been had she used the information for personal purposes. In addition, the Appellant recognized that it was very naive of her to commit those acts. With respect to the Appellant's consultation of her spouse's file, the representative argued that there was nothing in this file pertaining to the legal procedures by the Ministère (Ministère de l'Éducation, du Loisir et du Sport) against her spouse that she could consult because this fell under the responsibility of the legal sector and did not appear in his file. He added that it was a [translation] "sensitive" file, as allegations were made, but that it did not contain associated evidence and documents, and that a request for information was made to the employer to that effect to which the employer did not respond;
20. (t) The representative submitted that the Appellant's actions did not warrant a dismissal, which was [translation] "far too strict," and that a suspension would have been sufficient and would have been a [translation] "very severe but not extreme" disciplinary action.

[16] The Commission made the following observations and submissions:

1. (a) It stated in its submissions that subsection 30(2) of the Act provides for the imposition of an indefinite disqualification if it is established that the Appellant lost her employment because of her own misconduct. The Commission noted that in order to constitute misconduct within the meaning of section 30 of the Act, the act complained of must have been wilful or deliberate or so reckless or negligent as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal (Exhibit GD4-3);
2. (b) It submitted that refusal to obey or comply with an order or with a legitimate and reasonable instruction from the employer may constitute misconduct. It noted that if the order or instruction seems reasonable and rational, misconduct may be concluded, particularly if the person was advised orally and in writing to obey the employer's regulations. The Commission also explained that if the person contends that the order or instruction was unreasonable, it is up to the person to explain how the order or instruction was unreasonable and demonstrate why he or she did not use other measures to express his or her disagreement (Exhibit GD4-3);
3. (c) It noted that, in this case, regardless of the Appellant's intention, it nonetheless remains that the Appellant acknowledged consulting the files unlawfully, out of mere curiosity or to find out certain facts in the file. It noted that the Appellant had signed an undertaking of confidentiality as per the employer's policy and that she knew the ins and outs of ethical non-compliance (Exhibit GD4-3);
4. (d) It submitted that the Appellant was paid by her employer to carry out specific work and to perform the work she was hired to do in exchange for remuneration. She preferred to ignore the employer's regulations and therefore her dismissal was the logical consequence of her actions and is the direct cause of her claim for benefits (Exhibit GD4-3);
5. (e) It found that the acts the employer accused her of committing and acknowledged by the Appellant constituted misconduct within the meaning of the Act. It added that for her employer, the bond of trust was irreparably broken. It determined that the Appellant does not fall under sections 29 and 30 of the Act (Exhibit GD4-3).

Analysis

[17] Subsection 30(2) of the Act provides for the imposition of an indefinite disqualification if it is established that the claimant lost his or her employment because of his or her own misconduct.

[18] In order to constitute misconduct within the meaning of section 30 of the Act, the act complained of must have been wilful or deliberate or so reckless or negligent as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal.

[19] Furthermore, an employment contract can be broadly defined as an agreement between employer and employee assigning payment and other benefits to the employee in exchange for services which, by virtue of this mutual interest, implies respect for rules of conduct agreed to by the parties and sanctioned by professional ethics, common sense, usage or custom.

[20] There are numerous acts and omissions that can be labelled misconduct, in the sense that they are incompatible with the objectives of an employment contract, present a conflict of interest with the employer's activities, or have a negative effect on the relationship of trust between the parties.

[21] Breaches of established standards, instructions, formal or implicit rules or regulations or the collective agreement constitute misconduct where such standards, instructions, rules or regulations are shown to exist and the breach is specified.

[22] In this case, the Appellant acknowledged the facts alleged against her by her employer that led to her dismissal, that is, having consulted confidential files that were not required to fulfill her duties on numerous occasions (Exhibit GD3-14).

[23] The acts the Appellant is accused of committing clearly constitute misconduct within the meaning of the Act.

[24] At the hearing, the Appellant's representative argued that the employer, the Ministère de l'Éducation, du Loisir et du Sport, did not implement sufficient measures to deal with the consultation of personal files, the possible consequences or the measures to be taken in such cases, compared to, according to him, other government institutions. However, the evidence on file shows that the employer took a number of preliminary measures against the Appellant prior to making the decision to dismiss her.

[25] In the Appellant's letter of dismissal, the employer indicated that the Appellant was notified in September 2009 not to intervene in her children's files (Exhibit GD3-15).

[26] The warning was also followed up with the Appellant's signature, in October 2009, of a document titled [translation] "AFE staff confidentiality undertaking" (Exhibit GD3-19). The document very clearly states the conditions under which the Appellant committed to [translation] "respect the confidentiality of the information" to which she had access within the Aide financière aux études (AFE) section of the Ministère de l'Éducation, du Loisir et du Sport and [translation] "fully understand it" (Exhibit GD3-19). The Tribunal is of the view that the Appellant was fully aware of the policy in place regarding the confidentiality of the information to which she had access.

[27] The document stipulates, inter alia, that the Appellant undertakes to [translation] "only access that personal information required to perform my [her] assigned duties; use this information only when necessary to perform my [her] duties; . . ." (Exhibit GD3-19).

[28] In the event of a breach of the signed undertaking, the Appellant was also aware that she could be subject [translation] "to legal action, claims or lawsuits, as well as the penalties under section 159 of the Act for the unauthorized disclosure of information" (Exhibit GD3-19).

[29] In the Appellant's letter of dismissal, the employer also specified that between January 2011 and April 2013, the Appellant consulted her children's file over 454 times and that of her spouse 57 times and that, in the latter case, it was a file containing [translation] "highly confidential information" (Exhibit GD3-14).

[30] In that letter, the employer also stated that it sent a communiqué to all employees, in May 2012, as a [translation] "reminder of ethics in the public service" (Exhibit GD3-15).

[31] According to the letter, in November 2012, following a telephone call from a manager in another directorate, the Appellant was notified once again by her employer not to intervene in her children's files (Exhibit GD3-15).

[32] Later, and subsequent to the meeting held on May 15, 2013, between the Appellant and her employer, the employer made the decision to dismiss the Appellant (Exhibit GD3-15).

[33] The Tribunal is of the view that the Appellant could not be unaware of the scope of her actions, and that in this context, it does not accept the Appellant's argument that it was [translation] "ignorance" on her part, a [translation] "lack of understanding" of the Civil Service Act, that she was not [translation] "aware of the exact procedure", that she had misinterpreted it, or that she was unaware that [translation] "consulting a personal file was wrong," which she stopped doing following her meeting with her employer on May 15, 2013 (Exhibits GD2-2 and GD2-5).

[34] Moreover, the Tribunal does not accept the Appellant's representative's submission that progressive discipline could have been applied to the Appellant prior to proceeding with her dismissal. The Tribunal considers that a number of warnings were given to the Appellant prior to her being dismissed, but that she chose to ignore them.

[35] The Appellant's representative also argued that the Appellant never used the information to which she had access for personal use and that her actions had not warranted a dismissal, which was [translation] "far too strict," in his opinion, which is an argument that the Appellant also made (Exhibits GD2-5 and GD2-6). However, the Tribunal notes that the case law has established that its role is not to determine whether the dismissal is justified or whether the sanction taken against the Appellant was appropriate, but to determine whether the Appellant's actions constitute misconduct within the meaning of the Act (Caul, 2006 FCA 251 (CanLII); Marion, 2002 FCA 185 (CanLII); Secours, A-352-94).

[36] Furthermore, the Tribunal does not accept the argument that other elements related to the [translation] "employment context" are connected to the Appellant's dismissal. In two explanatory letters, the Appellant noted, inter alia, that the manager (unit head), France Giroux, had inflicted [translation] "psychological harassment" on a number of employees, that she had a [translation] "personal vendetta" against the Appellant because she granted tenure to other employees with less seniority (Exhibits GD2-5, GD2-6, GD2-9 and GD2-10). The Tribunal is of the view that the Appellant introduced other elements in an attempt to build her dismissal case. Moreover, the Appellant's representative never raised this issue during the hearing. Furthermore, in her claim for benefits, completed on June 6, 2013, the Appellant answered in the negative to the question asking whether there was any other information she wished to add with respect to the incident relating to the circumstances of her dismissal at the employer's place of employment (question number 10 of the claim for benefits – Exhibit GD6A-11).

[37] The Tribunal considers that the evidence present shows that the Appellant was dismissed because of actions she committed wilfully and deliberately.

[38] The Tribunal finds that the Appellant deliberately chose to override very clear instructions issued by her employer. In so doing, the Appellant broke the bond of trust between her and her employer.

[39] That is why the Tribunal finds that her actions constitute misconduct within the meaning of the Act and that the Appellant lost her employment through her own fault.

[40] Based on the above case law and on the evidence presented, the Tribunal finds that the Appellant lost her employment because of her misconduct and that accordingly, the Commission's decision to disqualify her from receiving Employment Insurance benefits is justified in the circumstances.

[41] The Tribunal finds that the appeal on this issue has no merit.

Conclusion

[42] The appeal is dismissed.