Employment Insurance (EI)

Persons in attendance

The Appellant attended the hearing in person on February 10, 2014. No one else was in attendance.

The hearing was adjourned to April 2, 2014 by teleconference because on February 10, 2014, the Appellant advised that she did not receive some of the documents in the GD3 file.

Decision

[1] The Member of the Social Security Tribunal, General Division, Employment Insurance Section (the "Tribunal") finds that the Commission has proven on a balance of probabilities that the Appellant lost her employment because of her own misconduct. The appeal is, accordingly, dismissed.

Introduction

[2] The Appellant filed an initial claim for benefits on May 22, 2013 (Exhibit GD3-16). Her claim was established effective May 19, 2013 (GD4-1).

[3] The Canada Employment Insurance Commission (the "Commission") decided on June 18, 2013, that it was unable to pay the Appellant benefits because she lost her employment as a result of her misconduct (GD3-22).

[4] The Appellant filed a request for reconsideration. On July 26, 2013, the Commission reconsidered its original decision and decided to maintain it (GD3-41).

[5] The Appellant filed an appeal to the Tribunal on August 16, 2013 (GD-2).

Form of hearing

[6] The hearing was heard in person and by telephone for the reasons indicated in the Notices of Hearing dated January 30, 2014 and February 11, 2014.

Issue

[7] Whether or not the Appellant lost her employment by reason of her own misconduct pursuant to subsection 30(1) of the Employment Insurance Act, S.C. 1996, c. 23 (the "Act")?

Applicable law

[8] According to subsection 30(1) of the Act, a claimant is disqualified from receiving benefits if the claimant lost any employment because of their misconduct. It provides as follows:

30. (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

1. (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
2. (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.

Evidence

[9] The Appellant advised in her application for benefits dated May 22, 2013 as follows: Her highest level of education is University; She worked at "CDL" (the "Employer") from April 18, 2002 to May 17, 2013 as a "Customer Service Operator- telephone system" until she was dismissed or suspended; Her employer advised that she was unsuitable because of unsatisfactory performance, inability to perform certain duties and lack of skills, knowledge and/or experience (GD3-2 to 17).

[10] According to the record of employment ("ROE") dated Ma y 22, 2013 , the Appellant worked at "CDL" in "customer service" from April 18, 2012 to May 17, 2013.

The Appellant was provided with severance pay in the amount of $1120.00 the reason for issuing the ROE was listed as Code "M" (GD3-18).

The Employer's Evidence:

[11] According to the notes in the file the employer advised as follows on June 12 and 17, 2013:

[12] The Appellant was dismissed after warnings and suspensions; The Appellant had been suspended for not having followed company procedures; She was supposed to send copies of documents to the client's physicians, which she did not do; She was sent a reminder policy and did not follow it (GD3-19 and 20).

[13] The triggering event was when they noticed that she had been transferring calls to a voice mail box of a colleague who had been absent for 2 months; The message did not say that her colleague was absent so there were over 30 calls in the voice mail box, which clients thought would have been answered; When the employer transferred the calls to their own extensions on May 16, 2013, the supervisor received a call and the director received two calls; On May 17, 2013, 2 other calls had been transferred; When the Appellant was confronted, she did not provide any explanation (GD3-19 and 20) or deny it; The Afternoon supervisor, "PB" saw her transferring calls in action; They knew that the calls were from the Appellant's phone line because it was indicated in the phone screen; It said "N./D./ and then her line" (GD3-38).

[14] There was also a difference between the time that the Appellant had on her time cards and the opening and closing of the employer's telephone systems (GD3-20).

[15] The following documents were included in the file:

1. a) An email from M. to the Appellant dated October 16, 2012, provides as follows: Since the Appellant advised she only has problems with Time Tracker at the beginning of the day, (as opposed to during lunch or the end of the day), she investigated the problem. According to her magnetic key, she only arrived at 8:23am. M. will not adjust her time unless she can show that she arrived at 8:00am sharp. The employer also noted that the Appellant complained that she had a problem and only made the adjustment ½ an hour later. The Appellant was advised to send an email to M. for any future issues she had with her Time Tracker log in (GD3-28).
2. b) An email from M. to the Appellant dated November 30, 2012, which provides as follows: The Appellant placed a Time Tracker request to correct her start time from 8:14 am to 8:00am when the system shows clearly that she entered the Client Services department at 8:12 am. She also clocked out and took her lunch from 12:00pm to 12:39pm. She then left with her coat at 12:55pm and only returned to Client Services at 1:53pm. If she does not provide a valid reason for not having clocked out this time, one hour will be removed from her work (GD3-27).
3. c) An email from M. to the Appellant dated December 14, 2012, which provided as follows: On Monday, December 10, 2012, she was the only person working and she transferred a Client Services call to the lab phone without responding to the Client or asking, what information was needed. This is the second time that they noticed that she transfers calls without answering them. When she is at her desk, she does not answer calls from them. As the Appellant replied that this is because her phone was on "low", the Appellant must increase her volume ASAP and advise if she requires additional phone training (GD3-29).
4. d) An email from M. to the Appellant dated December 18, 2012, which provides as follows: M. will not tolerate the rude and defensive manner in which the Appellant spoke to her that morning. She also arrived at 8:07am, used the Internet for personal reasons, and used a "cuss word" even though she was warned against this language several times. This is her second warning in the past two weeks. The employee manual provides that they do not tolerate insubordinate behaviour. She would like an apology (GD3-30).
5. e) A letter dated February 1, 2013, which was signed by the Appellant on February 4, 2013, provides that she will be suspended without pay on Friday, February 1, 2013 on the grounds that: She transferred calls regarding test prices, without answering them; She even re-transferred a patient who had complained about having been transferred; Her job is to provide test prices; She used the Internet for purposes unrelated to work on work time; There have been discrepancies on the time that she takes for lunch and what she enters into Time Tracker; She cannot combine her lunch and 15 minute break together, unless it has been approved in advance (GD3-31).
6. f) An email dated March 28, 2013, from J. to the Appellant which provides that she gives out incorrect test information and tells clients to fast for 8 hours instead of 12 hours. These mistakes are serious because patients get turned away or tests have to be redone or there could be misdiagnosis. Her tone was nonchalant. They can also lose patients or doctors over this (GD3-32).
7. g) An email dated April 19, 2013, from J. to the Appellant which provides as follows: She left before 12:45 and did not punch out until after she returned at 1:05pm. This is unacceptable and she cannot do this again (GD3-33).
8. h) A letter dated April 23, 2013 and signed by the Appellant, which provides that the Appellant will be placed on a 2 day suspension without pay for April 24 and 25, 2013 on the grounds that: She did not follow the policy, which was explained in the reminder email dated April 11, 2013 (GD3-35, email from J. to the associates) that she had to initial certain reports and send copies to doctors. She has also not followed company procedure regarding test information and clocking out (GD3-34).
9. i) A dismissal letter dated May 17, 2013, was signed by the Appellant and provided that she will be terminated effective immediately for the reasons, which follow: She had received several verbal and written warnings and 2 suspensions regarding issues with her performance. She had discrepancies in her clock in and clock out times, transferring calls and not answering them, misleading clients re test procedures and not sending out proper reports; J. and PB witnessed her transferring calls to a colleague who had been on leave for 2 months. They receive numerous complaints regarding her conduct, which is unprofessional and unacceptable (GD3-37).

The Appellant's Evidence in the File

[16] On June 17, 2013, the Commission agent noted that Appellant denied transferring calls to a colleague's voice mail box who was on leave. With respect to her suspension, the Appellant said that the employer changed its policy regarding the combination of the 30 minute lunch break and the 15 minute break arbitrarily. She acknowledged that she was warned regarding answering the phones properly and that she had been suspended 2 months prior for not having done this. She did not receive the April 11, 2013 e-mail outlining the procedure for STAT (urgent) and regular reports and regarding signing the bottom of the reports. Her boss told her that she was let go because she transferred calls and her boss was smiling at the time. She suspects that she was really let go because of "downsizing" (GD3-21).

[17] The Appellant provided the following evidence in the Request for Reconsideration: The Appellant worked hard, was always on time and was an honest and dedicated employee; She was dismissed for a non-valid reason; She was treated unfairly; She worked at Winners on a part time basis from 2004 to 2012 while she was going to school; She quit after she found the full time job at "CDL"; She intended to work at this job for many years and she liked it very much and she is sad that this happened to her (GD3-26).

[18] On July 25, 2013, the Commission noted that: The Appellant advised that she did not transfer calls and sometimes people used her phone line; She said nothing when she was told that PB saw her do it and that J. and PB saw on their screen that it came from her phone; She argued that transferring calls is not misconduct.

Testimony at the Hearing on February 10, 2014:

(except where otherwise specified that the testimony is from April 2, 2014)

[19] The Appellant advised that she started working at the Employer in April 2012 and that PB and D. and A. trained her.

[20] Her priorities were to first answer the phone calls and second, to manage the requests from the fax machine.

[21] She also dealt with arranging courier deliveries and pick-ups and did data entry on the ultra sounds.

[22] She would always be the first to arrive. She would arrive at 7:30am even though work would start at 8:00 am. She would get calls from clinics, inquiring regarding the results. She would answer these calls right away.

[23] She would stay and work over time even if she was not paid for it.

"Initialing" and "Stat Paper"

[24] With respect to the issue of initialing the "stat paper" (GD34 and 35), the Appellant advised that she never received the e-mail reminder regarding the "stat" paper. She did not know that she had to initial the document before putting it in the binder.

[25] The Appellant advised that PB, D. or A. did not tell her about this procedure. She was trained by A. in pap and ultra sound data entry. She had no recollection of her saying "put your initials" on the document. That is why she was suspended for the day. They did not tell her before.

[26] She did not get the email reminder at GD3-34 and 35 because they always had problems from a technological standpoint. They had power failures and the in house IT people would not fix the problems in time.

[27] The technician started at 10.00am so there was a great deal of trouble shooting, which had to be done.

[28] She always had email problems. Her emails were sometimes marked, "undelivered". They used "outlook express" for emails in the office. They faxed through "limbs" or manually. She always had to reboot her computer and it would be very annoying. The computers were old and not up to date.

[29] On April 2, 2014, when the Tribunal asked the Appellant whether other people had the same problem or claimed not to have received the email at GD3-35, the Appellant stated that she asked other people if they received it and N. said she did not receive it either. No one else had been disciplined for this.

[30] They would take the papers from the fax machine, check them off and initial them. There were 6 women working there and any one of them could do it.

[31] Some of the doctors did not have a facsimile number listed and she would have to make calls to get them.

[32] One doctor would read pap results. One doctor would read ultrasounds and another doctor was responsible for the x rays. The environment was stressful because the "limbs" software program, which the other clinics had access to, would frequently not update properly. She would see the information on her end and the clinics would not see that it had been entered on their end.

Alleged Transferring of Phone Calls

[33] Her assistant "A. L." used her phone and would answer it.

[34] She would answer her phone but other lines always kept ringing. There were 5 other people, including, PB her supervisor who could have answered the phones. She could not get work done if she answered the phones all of the time.

[35] N. was the main phone operator. The Appellant would often cover for N., when N. went for lunch.

[36] She was told not to discuss her suspensions or dismissals with her colleagues. She only discussed it with them two months after she was dismissed. When she advised that they were very surprised that she was dismissed for transferring "one phone call", the Tribunal advised that the file appears to reference the transferring of many phone calls. She disagreed and advised that it was one phone call for D. She remembers exactly, which clinic it was. It was the ovo clinic and they asked to leave a message for D. even though she advised that D. was on sick leave. This happened the day before she was fired (May 16, 2013) and she did not transfer any other phone calls ever.

[37] The Appellant advised that PB could not have seen her transfer that call because he works in the afternoon. He was not there and he agreed with whatever was said. He said "yes, I did see you transfer the call to me. And I am very sorry." He just looked at J.

[38] With respect to the allegations at GD3-31 that she transferred calls regarding test prices and that answering questions relating to test prices was part of her job, she advised on April 2, 2014, that she did transfer calls when the caller wanted information, which was technical, and which only a lab technician could provide. Sometimes, when she told clients to "please hold", they would hang up on her.

[39] The Appellant queried whether she had received sufficient training. After further questions by the Tribunal, on April 2, 2014, the Appellant advised that the test prices were listed on the computer. The list would also say whether or not fasting was required.

[40] On April 2, 2014, the Appellant advised that she saw A. L. take a call on her phone on May 16, 2013. It was a phone call for D. and she said that A. L. picked up the phone and that she was right beside her. She saw A. L. transfer the call.

[41] On April 2, 2014, when the Tribunal asked her regarding her earlier February testimony and her advice that she had only ever transferred 1 call and that it was the call for D., the Appellant advised that the transfer of the one call for D. from the OVO clinic occurred on another day and that call was not in relation to May 16, 2013.

[42] With respect to GD3-38, the Appellant advised that she told the Commission and the Employer that it was A. L. who transferred the call and not her and that this is the case despite what is written at GD3-38. She also does not know why the Commission does not have it in their notes that PB was not there.

[43] On April 2, 2014, with respect to GD3-29, and the allegation that on December 18, 2012, the Appellant was the only one working and that she transferred calls and did not answer them because her phone was on low volume, the Appellant advised that on that day, A. L. was answering her phone when she was in the lab. The Appellant advised that she told M. and that M. said that she thought that A. L. was the Appellant.

[44] The Tribunal pointed out that the email from M. to J. reporting the issue of transferring of calls was dated January 24, 2013. The Appellant advised that J. once told the Appellant in a conference room, that she received email complaints that she transferred calls but that she had not ever seen this email.

[45] A. L. needed her own phone and no one arranged to provide her with one.

[46] On April 2, 2014, when the Appellant was asked whether she ever told A. L. not to transfer her calls, the Appellant advised that she remembers asking A. L. about this.

Relationship with J. and M.

[47] J. and M. were both on maternity leave when she started. She did not even realize that they were her bosses until they came back. M. came back first and advised that she would be filling in while J. was away and that the Appellant should ask her if she had any questions.

[48] M. came back in July 2012 (2 months after she was there).

[49] J. came back in January 2013.

[50] The Appellant sensed that M. and J. disliked her.

[51] Her colleagues told her to watch out when M. came back. She did not understand why. They said that M. was very picky. The Appellant gave the example that M. did not like when the radio was on loud. M. would call the Appellant on her phone at her desk and would tell her to turn it off. M. would not call any of her colleagues and would just call her. She would turn it off and then someone else would turn it back on and M. would get angry and reprimand the Appellant.

[52] On April 2, 2014, when the Tribunal asked the Appellant whether she would explain to M. that she did not turn off the radio or what she would say when M. asked her to turn off the radio, the Appellant advised that she would tell M. that the radio was not on loud.

[53] When the Tribunal asked the Appellant if other people told M. that the radio was not loud, she advised that they did not because they were too afraid to tell her. When her colleagues became angry, the Appellant told them that they should stand up to M.

[54] At one point, A. L. was on maternity leave and then she returned at the end of July or August. When the Tribunal queried whether M. and J. had a problem with anyone else, the Appellant advised that she thought that they also had a problem with A. L.

[55] The Appellant then advised that the problem with A. L. was related to her availability and that M. and J. kept giving A. L. other things to do when A. L. was supposed to be the Appellant's assistant and was supposed to assist her. When they would give A. L. other tasks, the Appellant would ask "how am I supposed to do all of my work" and, "who is going to assist me?" A. L. would agree to do whatever J. and M. asked her to do. She was a "yes girl".

[56] PB, A. and D. replaced M. and J. when they were on leave. There was tension when M. came back. She worked in the lab and she replaced J. as head of client services for a while.

[57] M. also complained that the Appellant had a loud voice and she would often ask the Appellant to lower her voice. The Appellant advised that she has a loud voice and that she is a nervous person and that she has a tendency to speak louder when she is nervous.

[58] She never complained to PB regarding M. and J. and the issues, which she seemed to have been having because he was very deferential towards them and PB was their "yes man". PB had a close relationship with J. and they would get each other coffee on breaks. She spoke to D. about this. He did not have a backbone and would not defend himself when he got "shit".

[59] Since she left, 5 people quit. It is not an organized place and a lot of people left because of M..

[60] On April 2, 2014, the Tribunal queried, what she thought of her job situation. The Appellant advised that after she was suspended, she thought that maybe everything would be fine. J. and M. tried to do whatever they could to get her out of there.

[61] On April 2, 2014, the Appellant advised that a colleague told her that she heard M. and J. discussing her in a conference room prior to dismissing her.

Her Other Work Experiences

[62] She always got along well with other people in the workplace. She worked at Winners for 8 years. She was a serious and dedicated worker and really loved her job. She was hired on the spot at the Employer. She trained for 2 weeks in the lab for data entry. They knew that she was inexperienced but she learned very quickly.

[63] After she was dismissed, many people called her to inquire. One doctor called her at home and said that they would not find someone else like her. She would overtime and work holidays.

[64] When the Tribunal queried whether she ever called the provincial employment standards office, the Appellant advised that she called the Normes du Travail and that she asked the office what could be done because she had been "unjustly dismissed" and they told her that they were understaffed and that they did not have anyone to help her and that she should call "Revenue Canada".

[65] The services Canada agent told her that she had been dismissed for misconduct on account of "unsatisfactory performance". She does not think this is misconduct she referred to the information on the Commission website re: definition of misconduct and submitted that "unsatisfactory performance" was not on the list of "Actions, omissions or faults judged as misconduct" and that the website provided that unsatisfactory performance could only be misconduct of the "actions, omissions or faults are done wilfully or are the result of unwillingness".

[66] This is her first employment insurance benefit claim. She has a great job. She started working in November 2013. At her present job, clients keep calling the head office of the financial firm where she works to say how great she is. She gets a lot of compliments and her boss asked her why he keeps getting all of these calls praising her.

Combining Breaks

[67] With respect to the allegation, at GD3-31, that she combined her breaks even though this was not permitted, the Appellant advised that D. trained her on time tracker and told her that she would have 15 minutes break in the morning and 15 minutes break in the afternoon.

[68] PB advised that it would be okay for her to combine her breaks.

[69] When M. and J. saw that she was combining her breaks, they suspended her for this. Right before she was suspended, she advised M. that PB said that it was okay. Then M. went to speak with PB and then PB approached the Appellant. The Appellant then asked PB why he advised that she could combine her breaks when this was not permitted. PB went in and came out and then said "I am sorry. I told M. that I told you that you cannot combine your breaks". He did not answer her when she asked him why he said that she was allowed to do it when that was not true.

On April 2, 2014, the Appellant advised that she first learned that she could not combine her breaks on February 1, 2013, when she was suspended and received the letter. Other people combined their breaks and did not get suspended over it.

Testimony from the April 2, 2014 telephone hearing:

(Unless otherwise specified that the testimony is from the February 10, 2014 hearing)

Allegations of Lateness and Altering her Record of Hours Worked

[70] On April 2, 2014, when the Tribunal asked whether her punch cards also showed that she came in at 7:30 am even though she started at 8:00am, she advised that she did not always come in at 730 am and that she would not punch in until 8:00am because that was the time at which she started to be paid. She explained that because the Employer did not pay overtime, she would not bother punching in any earlier.

[71] The Tribunal asked her whether she ever arrived late for work and she advised that she was only ever late on one occasion, when the metro was down. She called and advised her supervisor(s) that time that she would be late. She was at least 30 minutes late that one time.

[72] With respect to the email at GD3-28, that she had arrived at 8.23am and had adjusted Time Tracker to show that she was on time (8:00am), the Appellant explained that she had not adjusted Time Tracker herself and that this had been done by PB. She acknowledged having read and received this email. The Appellant explained that she did not know how to adjust Time Tracker and that only PB had access or authority to make an adjustment. When this happened, she told M. that PB had authorized it. M. went to talk to PB and she does not know what happened after.

[73] The Appellant explained that sometimes on Time Tracker, she would log in with her user name and ID and nothing would happen.

[74] When the Tribunal asked the Appellant why she would modified her Time Tracker entry according to the allegation at GD3-27 to show that she arrived at 8:00 am when it is alleged that she arrived at 8:14am, when she had been disciplined for this conduct earlier, the Appellant advised that that this was not done with her authorization and that she has no idea why PB would have done it.

[75] With respect to the allegation at GD3-27, that she took two lunches the day before on November 29, 2012, the Appellant said that she did not take the first lunch period off as alleged from 12:00pm to 12:39pm and that she did take the second lunch period off. She advised that the 12:00pm lunch time on time tracker was likely a "glitch". She did not take her lunch time at a set time each day and that she would arrange it with the other staff. When the Appellant received the email, the Appellant explained to M. that she only left at 1:00pm for lunch. The Appellant also advised that PB did not alter her time because he only came in that day after 2:00pm because his mother had passed away. Either the technicians altered it if PB was not there or it was a "glitch". The technicians also had access to the Time Tracker. It was impossible that she punched out at 12pm because she took lunch at 1.00pm. She does not remember what she did for lunch that day.

[76] With respect to the allegation at GD3-33, that the Appellant left before 12:45pm and did not punch out until her return on April 19, 2013, the Appellant denied ever having received this email from J.. When she was asked whether she remembered being accused of not punching out until after she returned, she advised that she does not remember. She also does not remember ever getting an email regarding her extended lunch break on this day.

[77] With respect to the email of December 18, 2012, at GD3-30, the Appellant admitted that she arrived at 8.07 am and that she would sometimes arrive a few minutes late but not all of the time. She also admitted that she was rude to M. as alleged. She explained that she was in a bad mood and that she apologized to M. after for speaking that way. She denied using the Internet for personal reasons other than at lunch and advised that she only used the Internet to google different clinics and their addresses on work time. When asked if she used a "cuss word", the Appellant advised that the word "shit" is not a cuss word.

[78] In response to the Tribunal's questions, the Appellant also advised that the owner of the clinic, who rarely came in swore from time to time and that she never heard M. or J. swear.

Allegation of Giving out Incorrect Test Information

[79] With respect to the allegation at GD3-32 in an email from J., that she gave out incorrect test information, the Appellant has no recollection of ever having received the email and denies having received it. The Appellant, admits, however that she did provide false information. When J. heard her tell someone to fast for 8 hours instead of 12, the Appellant advised J. that she "made a mistake". The Appellant advised that she took it upon herself to call the client back and correct her advice.

Submissions

[80] The Appellant submitted that she did not lose her employment by reason of her own misconduct for the following reasons:

1. a) She did not transfer calls improperly; (GD3-21, Request for Reconsideration. GD3-35, 40, Notice of Appeal, GD3-2)
2. b) The policy against combining the 30 minute lunch break and 15 minute break was made arbitrarily (GD3-21);
3. c) Unsatisfactory work performance and transferring telephone calls are not listed on the Commission's website under the heading "Actions, omissions, or faults judged as misconduct" and the website specifies that unsatisfactory work performance can only be misconduct where the "actions, omissions or faults are done wilfully or are the result of unwillingness" (GD-40 and testimony); and,
4. d) She was treated unfairly by two individuals who wanted to get rid of her and that she is a hard working and dedicated employee (testimony on February 10, 2013 and April 2, 2014).

[81] The Respondent submitted that the Appellant lost her employment by reason of her own misconduct for the following reasons:

1. a) Subsection 30(2) of the Act provides for an indefinite disqualification when the claimant loses her employment by reason of her own misconduct. For the conduct in question to constitute misconduct within the meaning of section 30 of the Act, it must be willful or deliberate or so reckless as to approach willfulness. There must also be a causal relationship between the misconduct and the dismissal. (GD4-4);
2. b) The employer's version was more credible and supported by the documentary evidence, whereas the Appellant remained silent after reviewing the information disclosed by her employer and then she changed her position and argued that it was not misconduct;
3. c) Transferring routine calls to another employee's voice mail is willful or deliberate or so reckless as to approach willfulness because the Appellant had received a final warning and there was a causal relationship between the misconduct and the dismissal (GD4-5);
4. d) There will be misconduct where the conduct of the Appellant was willful, ie., in the sense that the acts which led to the dismissal were conscious, deliberate or intentional (Mishibinijima 2007 FCA 36) (GD4-5);
5. e) There will be misconduct where the Appellant knew or ought to have known that his or her conduct was such that it would result in dismissal. There must therefore, be a causal link between the misconduct and the employment. The misconduct must therefore constitute a breach of an express or implied duty resulting from the contract of employment (Lemire 2010 FCA 314) (GD4-5);
6. f) It is not for an employee to decide how an employer should run its business and an employer has the right to adopt a sales procedure and to expect that his employees will follow it (CUB 78553) (GD4-6);

Analysis

"Misconduct" is not defined in the Act. The test for misconduct is whether the act complained of was willful, or at least of such a careless or negligent nature that one could say that the employee willfully disregarded the effects his or her actions would have on job performance (Tucker A-381-85) or of a standard that an employer has a right to expect (Brisette A-1342-92). For conduct to be considered "misconduct" under the Act, it must be so willful or so reckless so as to approach willfulness. (Mackay-Eden A-402-96; Tucker A-381-85).

[82] The misconduct may manifest itself in a violation of the law, regulation or ethical rule and it should be shown that the impugned conduct constitutes a breach of an express or implied duty included in the contract of employment of such scope that the employee would normally foresee that it would be likely to result in his or her dismissal (Nolet A-517-91; Langlois A-94-95).

[83] It is also required to be established that the misconduct was the cause of the Appellant's dismissal from employment. (Cartier A-168-00; Namaro A-834-82). In fact, the misconduct must be the operative cause for the dismissal and not merely an excuse to justify it (Bartone A-369-88; Davlut A-241-82, [1983] S.C.C.A 398; McNamara A-239-06, 2007 FCA 107; CUB 38905; 1997).

[84] In this regard, the Commission must prove on a balance of probabilities that the Appellant lost his or her employment due to his own misconduct (Larivee A-473-06, Falardeau A-396-85).

[85] With respect to the question as to whether or not the termination of the Appellant's employment by the employer was the appropriate sanction, the Commission, the Tribunal and the Court are not in a position to evaluate or review the severity of the sanction. Rather, the sole question with which the Tribunal must concern itself, is whether or not the impugned conduct amounts to "misconduct" within the meaning of section 30 of the Act (Secours A-352-94, [2002] F.C.J.. 711 (FED CA); Marion 2002 FCA 185, A-135-01; Jolin A-200-09; Roberge A-176-09; Lemire A-51-10).

[86] As such, the Tribunal must query whether or not it has been clearly established, on a balance of probabilities that the Appellant violated a rule or standard which was established by the employer or otherwise amounted to an express of implied condition of his employment (Tucker A-381-85).

[87] The Appellant was accused of lateness, rudeness, using a "cuss word" or swearing, altering her Time Tracker or the record of her hours worked (the "Records"), not following company procedure, transferring phone calls, not carrying out her duties despite repeated warnings and discipline, including, suspensions.

[88] The Tribunal finds, that if the impugned conduct occurred, it would amount to a breach of the express or implied duties of general respect, punctuality, and respect for the schedule that has been set by the employer regarding work hours, which are included in the contract of employment. The Tribunal finds that the breach was of such scope that the Appellant would normally foresee that it would likely result in her dismissal (Nolet A- 517-91; Langlois A-94-95).

[89] Did the impugned conduct occur?

[90] The Tribunal does not find as a fact that the Commission has proven on a balance of probabilities that all of the impugned conduct occurred. The Tribunal does find, however, that the Commission has proven that some of the impugned conduct occurred and the Tribunal considers that to be sufficient for a finding of misconduct. The Tribunal also notes that in finding there was misconduct, it relied partly on the testimony of the Appellant and some of her admissions and partly on the extensive emails, warning letters, and suspension notices in the file. The Tribunal did this notwithstanding that some of the evidence was hearsay in nature. The Tribunal notes that it is permitted to rely on hearsay evidence and that the majority of the documentary hearsay evidence may be considered more reliable because most of it appears to have been generated in the context of the Appellant's employment and the employer's business and appear to have been made contemporaneously with the happening of the events (Morris A-291-98, leave to appeal to S.C.C. refused [1999] S.C.C.A No. 304; Mills A-1873-83).

[91] With respect to allegations concerning the combining of breaks, the Tribunal accepts the Appellant's evidence that she did not know that breaks could not be combined and that she had relied on PB's implied authorization or condoning of her past practice of break combining when she committed the conduct. In this regard, the Appellant could not be said to have had the requisite degree of knowledge regarding the consequences of her actions for those actions to amount to misconduct (Locke 2003 FCA 262; Lemire, 2010 FCA 314; Nolet A-517-91; Langlois A-94-95).

[92] With respect to the allegations regarding the alteration of the Time Tracker or her Records, the Tribunal finds that the Appellant's explanation on this point was not sufficient. While the Tribunal was able to accept that she required a third party's intervention for the altering of her Records and that PB had done it for her the first time (GD3-28) and that this may have amounted to a sufficient and credible explanation for the first incident, the Tribunal does not find that the Appellant's explanation for the subsequent alteration (GD3-27) just a month or so after she had been disciplined and warned regarding this very conduct, to have been credible. The Tribunal also noted that in her testimony, the Appellant claimed that the technicians did it without her authorization or that it was a computer "glitch". She did not deny that she had received the email or that it had been done.

[93] With respect to the allegations of lateness, the Tribunal finds that the Appellant was late to work on at least a few occasions and that the lateness constitutes misconduct. The Tribunal finds that in her earlier testimony on February 10, 2014, the Appellant advised that she was always on time and even arrived earlier than expected (by 730) and only clocked in at 8:00am. When the Tribunal asked her why she only clocked in at 8:00am if she arrived earlier, she explained that she was not paid overtime so there was no point in clocking in any earlier. This was her explanation despite that she was being accused of arriving late regularly to the office and that it would have been reasonable to assume that after her first warning e-mail on October 16, 2012, she would have had an interest in documenting her early arrivals. Then, on April 2, 2014, when the Tribunal asked the Appellant if she had ever been late, she advised that she was once 30 minutes late because of the subway system and that she called in advance to alert her employer prior to her arrival. The Tribunal does not find this testimony of the Appellant to be credible because the Appellant also admitted in her testimony that she came to work at 8:07am on December 18, 2012 (GD3-30) and in light of the other allegations in the file. When discussing her 8:07am arrival on December 18, 2012 the Appellant advised that she "was sometimes a few minutes late but not all of the time". The Tribunal finds that being a few minutes late amounts to lateness and that was especially the case in the environment in which she worked. The Tribunal finds that even if the Appellant came to work before 8:00am on a few occasions, this does not make up for her lateness on other occasions. The Tribunal finds that the Employer had a right to expect the scheduled it sets to be followed and this was especially important since the Appellant worked first thing in the morning (Secours A-352-94; Locke A-799-95; Parsons 2005 FCA 248; Fleming 2006 FCA 16; CUB 38781, 1997, CUB 60693, 2004 CUB 78228, 2011).

[94] The Tribunal also does not accept the Appellant's explanations regarding her lunch breaks, which were alleged either to have not been reported properly, were duplicated or were reported after they had been taken. The Tribunal finds that the Appellant's memory of the facts surrounding the incidents in question to have been selective and not very credible. For example, regarding the allegation at GD3-27, concerning November 29, 2012, the Appellant remembers that PB was not in until the afternoon because his mother had passed away and she was firm in her submission that she took lunch at 1:00pm on that date and not at the earlier time. At the same time, however, she could not recall what she did for lunch on the date in question. With respect, the Tribunal cannot find this testimony to be credible. How could the Appellant remember these details and not others? Where were her witnesses with whom she took her lunch break? This was regarding an incident for which she had been suspended. If she had a reasonable explanation for the alleged duplication of the lunch periods, one would expect that she would have offered it to the Employer at the time that she was suspended or that she would have provided it to the Tribunal during the hearings (Murray A-245-96; CUB 79899, 2012; CUB 77337, 2011; CUB 75794, 2010, CUB 66381A, 2008).

[95] With respect to the allegations, that the Appellant ignored phone calls or transferred calls and that PB saw her do this on May 16, 2013, the Tribunal finds that the Appellant did transfer calls even though there had been prior warnings and disciplinary actions regarding this exact conduct. Although the Appellant attempted to argue to the Commission and the Tribunal that "transferring calls" does not lead to misconduct, the Tribunal finds that while this might generally be a fair submission, it was not accurate in the context of the Appellant's job and that the list she referred to from the Commission's website was not an exhaustive list nor does it represent a complete state of the law in this area.

[96] The Appellant admitted that her first priority was to answer telephone calls and she even stated that answering telephone calls was part of her job description and title in her application for benefits (GD3-2 to 17). The Tribunal also finds, (and as will be discussed in more detail below) that not answering phone calls and ignoring the Employer's reasonable instructions in this regard, amounted to a form of "insubordination" and to a "refusal to carry out an order of instruction" and "unwillingness" to correct her "unsatisfactory performance", which are examples of misconduct, which are on the list to which the Appellant made reference.

[97] The Tribunal notes further that if the Appellant was unable to do her job properly, she had ample opportunity to explain this to her Employer. Incompetence is not misconduct. The allegations here are not that she erred or transferred calls because she was not capable of advising the callers properly, (although this formed the basis for one of her attempted justifications for the alleged conduct). The allegations are that she ignored ringing phones, she left her ring volume on low and would transfer calls to a mail box where the person was on leave. The Appellant advised on February 10, 2014 that she transferred only 1 call to D.'s mailbox and that this call was from the OVO clinic and that it was done on May 16, 2013 in the morning, that PB came in the afternoon and did not see her transfer this call because he was not there, and that she transferred the call because the clinic advised that it wanted to leave a message for D., notwithstanding that she advised the clinic that D. was not going to be at the office to retrieve the call. The Appellant advised that this was the only call that she ever transferred. She also alluded that A. L. (her assistant or colleague) also answered her phone. Then, on April 2, 2014, she advised that she witnessed A. L. transferring her calls on May 16, 2013, and that the call, which she had transferred on May 16, 2013 and that this is why she was ultimately dismissed. She then stated, in response to the Tribunal's questioning that the call from the OVO clinic occurred on a date other than May 16, 2013. Then, she submitted that she often transferred calls to the lab technicians when she did not have the information necessary to answer questions regarding testing. The Appellant also advised that she did not have access to all of the information and then admitted that testing information and prices and fasting information was readily available on her computer. The Tribunal finds that the Appellant first attempted to blame the May 16, 2013, alleged call transfers on the OVO clinic call and then she sought to blame it on A. L.. The Appellant's testimony in this regard was inconsistent, contradictory and not credible.

[98] The Appellant also did not provide a sufficient explanation or in some cases any explanation for some of the inconsistencies or allegations, including: That on December 14, 2012 in the e-mail at GD3-29, M. alleges that she was the only person working that day and the Appellant blamed the ignoring or transferring of phone calls on A. L.; Also, how could the Appellant admit to M. that she did not answer her phone because it was on "low" volume and at the same time submit that it was A. L. who was on her phone that day? Why is there no record of her telling M. that it was A. L. and not her who transferred the calls? Why does she not have a specific recollection of having told A. L. to cease and desist from transferring phone calls on her line if she saw A. L. do this in the past, after she had been suspended for this very conduct, and when she was (according to her own testimony), standing next to A. L. on May 16, 2013 when A. L. did this for the last time?

[99] With respect to the Appellant's submissions that it was difficult to work with J. and M. and that they were on a campaign to "get rid" of her even for small errors, the Tribunal finds that in this case there was antagonism with a supervisor, as those words are understood in accordance with paragraph 29(c)(x) of the Act. It also finds, however, that it cannot be said that the Appellant was not "primarily responsible for the antagonism" (Easson A-1598-92).

[100] The Tribunal accepts the Appellant's evidence that she was very happy and popular at the office for the 2 or 3 months prior to M,'s and then J.'s return. The Tribunal finds that it appears that PB, A., and D. were easier to work with as far as the Appellant was concerned and that they likely had less rules and requirements and enforced company policies with less rigour. The Tribunal finds that when M. returned, a conflict of personalities developed between her and the Appellant. The Tribunal does not find, however, that the Appellant handled the conflict in a manner that should have been expected of an employee in her situation. For example, the Appellant admitted that she was rude to M. on December 18, 2012 (GD3-30) when she arrived 7 minutes late. Although she also claimed to have apologized for her rudeness and explained that she was in a bad mood, the Tribunal finds that this kind of conduct toward an Employer cannot be tolerated and amounts to misconduct. With respect to the allegation that the Appellant used a "cuss word" on the day in question, the Appellant argued that "shit" is not a swear word. With respect, the Tribunal does not agree. The Tribunal finds that the Appellant worked in a professional environment, where she was sitting at a reception desk and was servicing clients and patients and was often the first point of contact between her Employer and the public. Using that kind of language in that environment is not acceptable because it is not professional and reflects poorly on herself and the Employer. The Tribunal also finds that this is especially the case because the Appellant admitted that she often spoke in a loud voice when she was nervous (CUB 39993, 1997) (her testimony).

[101] The Tribunal also finds that there was evidence in the Appellant's testimony regarding her general dealings with M., which demonstrated that she was responsible for at least some of the antagonism and that she was insubordinate. For example, when explaining that M. would often complain to her that the radio was loud, she testified that although she would turn off the radio, she would not apologize and would reply instead that the radio was not loud. The Tribunal finds that it was not relevant in that context whether or not the Appellant or her colleagues, found the radio to have been loud. Simply because PB, D. or A. may have tolerated a louder radio volume in the workplace, does not mean that M. or J. had to tolerate this upon their return to the office. The Appellant did not understand why M. would always telephone her and single her out when she asked for the radio to be turned off. This was the case, even though the Appellant testified that she was the only one to answer M. back and that she encouraged her colleagues to stand up to M.. The Tribunal finds M. likely sensed this and that in this regard, the Appellant was not being targeted unfairly and that there was a reasonable basis for M. to assume that the Appellant was the person who put the radio on loud. The theory that the Appellant did not deal well or strategically or in a manner, which showed respect and deference for her supervisors or was required of her, is consistent with the Appellant's assessment of her colleagues who followed the supervisors' directives and did not argue back or challenge the supervisors and her description of them as a "yes girl" (A. L.) or a "yes man" (PB). What the Appellant did not realize or accept is that choosing not to follow the reasonable directives of an employer or answering back or rudeness amounts to a form of insubordination (Bedell A-1716-83; Morrow A-170-98).

[102] The Tribunal does not doubt the veracity of accuracy of the Appellant's submissions that she is well liked in her present job and that she was well received in her past employment or that she was very popular with her other colleagues at the Employer or that she was well liked by the couriers or the doctors, with whom she had contact at the Employer. The Tribunal does find, however, that the Appellant demonstrated insubordinate behavior and an insubordinate attitude towards her supervisors and that this caused or contributed to the personality conflicts and antagonism between her and her supervisors. The Tribunal also finds that the Appellant did not do enough to address the conflict or to modify her conduct or attitude despite the repeated warnings and suspensions.

[103] The Tribunal finds that the Appellant was late on a few occasions, rude, used swear/cuss words and did not follow her employer's reasonable directives, regarding the transferring and answering of phone calls and exhibited an insubordinate attitude and conduct. The Tribunal finds that the foregoing conduct was misconduct because it breached an express or implied term of the Appellant's contract of employment (Tucker A-381-85; Brisette A-1342-92). The conduct was foreseeable because the Appellant knew or ought to have known what was expected of her in the context of her employment and this was especially the case because of the repeated warnings and suspensions, which she received (Lemire, 2010 FCA 314; Nolet A-517-91; Langlois A- 94-95). With respect to the element of causation, the Tribunal finds that the conduct caused or contributed to the antagonism between her and her supervisors and ultimately lead to her dismissal or the loss of her employment (Nolet A-517-91; Langlois A-94-95; Morrow A-170-98).

Conclusion

[104] For the foregoing reasons, the appeal is dismissed.