Employment Insurance (EI)

Persons in attendance

[1] The Appellant, N. G., participated in the telephone hearing (teleconference) held on June 11, 2014.

Decision

[2] The Social Security Tribunal of Canada (the Tribunal) finds that the appeal from the decision of the Employment Insurance Commission of Canada (the Commission) to disqualify the Appellant from receiving Employment Insurance benefits because she lost her employment by reason of her misconduct has merit under sections 29 and 30 of the Employment Insurance Act (the Act).

[2] The Social Security Tribunal of Canada (the Tribunal) finds that the appeal from the decision of the Employment Insurance Commission of Canada (the Commission) to disqualify the Appellant from receiving Employment Insurance benefits because she lost her employment by reason of her misconduct has merit under sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[3] On May 2, 2013, the Appellant filed an initial benefit claim that took effect on May 5, 2013. The Appellant stated that she worked for Pub du P'tit Boulevard (Donarco Ltée) from December 25, 2012, to April 28, 2013, inclusive, and that she stopped working for the employer as a result of a dismissal or suspension (Exhibits GD3-2 to GD3-13).

[4] On May 28, 2013, the Commission informed the Appellant that her Employment Insurance benefit claim would start on May 5, 2013. The Commission explained that the $385.00 received by the Appellant as vacation pay would be deducted from her benefits for the period from April 28, 2013, to May 11, 2013 (Exhibit GD2A-2).

[5] On June 6, 2013, the Commission notified the Appellant that she was not entitled to receive regular Employment Insurance benefits as of May 5, 2013, because she stopped working for Donarco Ltée, on April 28, 2013, by reason of her misconduct (Exhibits GD3-18 and GD3-19).

[6] On May 31, 2013, the Appellant submitted a Request for Reconsideration of an Employment Insurance (EI) decision. The Appellant stated that she was notified verbally of the Commission’s decision on May 21, 2013, that her benefit claim would be denied (Exhibits GD3-20 to GD3-26).

[7] On June 14, 2013, the Commission notified the Appellant that it was upholding the decision rendered in her case on May 17, 2013 [June 6, 2013] (Exhibit GD3-30).

[8] On July 5, 2013, Service Canada informed the Appellant that she had to contact the Social Security Tribunal if she wanted to appeal from the Commission’s decision (Exhibit GD2-2).

[9] On July 18, 2013 (date that the Tribunal received the document according to the date stamp), the Appellant informed the Tribunal of her intention to file an appeal from the reconsideration decision rendered in her case by submitting a letter with the heading “Reconsideration of the decision” and in which the Appellant provided new observations regarding her employer. On October 23, 2013, the Appellant sent a copy of the Commission’s reconsideration decision rendered on June 14, 2013 (Exhibits GD3-31, GD2-1, GD2-2 and GD2A-1 to GD2A-4). The Tribunal specified that even though the Appellant did not use the form entitled “Notice of Appeal – General Division – Employment Insurance Section” to file her appeal, this request was treated as a regular appeal to the Tribunal.

[10] On December 6, 2013, the Tribunal informed the employer that if the employer wanted to become an “added party” in this case, the employer had to submit a request to that effect no later than December 21, 2013. The employer did not follow up on the request.

Type of hearing

[11] The hearing was held by teleconference for the reasons set out in the notice of hearing dated May 21, 2014 (Exhibits GD1-1 and GD1-2).

Issue

[12] The Tribunal must determine whether the appeal from the Commission’s decision to disqualify the Appellant from receiving Employment Insurance benefits because she lost her employment by reason of her misconduct is justified under sections 29 and 30 of the Act.

Applicable law

[13] Regarding a “disqualification” as a result of “misconduct” or “leaving without just cause,” subsection 30(1) of the Act stipulates as follows:

. . . 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.

[14] Regarding a “length of disqualification,” subsection 30(2) of the Act stipulates as follows:

. . . The disqualification is for each week of the claimant’s benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.

[15] Regarding a “disqualification” or “disentitlement” from receiving Employment Insurance benefits, paragraphs 29(a) and 29(b) of the Act stipulate as follows:

. . . For the purposes of sections 30 to 33,

1. (a) “employment” refers to any employment of the claimant within their qualifying period or their benefit period;
2. (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers; …

Evidence

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

1. a) A Record of Employment, dated May 13, 2013, indicates that the Appellant worked as a [translation] “server” for Donarco Ltée, from December 25, 2012, to April 28, 2013, inclusive, and that she stopped working for the employer as a result of a dismissal (code M – Dismissal) (Exhibit GD3-15);
2. b) On May 16, 2013, the employer (R. S.) explained that the Appellant worked four days a week and that as a result of a conflict with another server (“barmaid”), the Appellant wanted to work two days a week and did not want to be in the presence of the other server. The employer stated that he informed the Appellant that if he found a person who wanted to work four days a week, he would hire that person. He specified that the other server with whom the Appellant did not want to work worked evenings every third Friday. He specified that this situation meant that the two employees saw each other only when they changed shifts, thus for about 10 to 15 minutes every third week (Exhibit GD3 16);
3. c) On June 14, 2013, the employer (R. S.) stated that the Appellant was hired to work as a barmaid and to serve [translation] “simple meals.” The employer explained that the Appellant asked him if she could work only Saturday and Sunday because she had a conflict with another employee whom she saw every third Friday and that this was the only reason the Appellant gave him. The employer explained that he dismissed the Appellant because he found another employee who agreed to work full time for four days a week. The employer stated that the Appellant did not discuss the fact that she felt tired, that she found making lunches too difficult and that she did not have help for the noon meals (Exhibit GD3-27);
4. d) On October 23, 2013, the Appellant sent the Tribunal a copy of the following documents:
   1. i. Letter from the Commission dated May 28, 2013, indicating that the Appellant’s benefit period would start on May 5, 2013 (Exhibit GD2A-2);
   2. ii. Letter from the Commission dated June 6, 2013, informing the Appellant that she was not entitled to receive regular Employment Insurance benefits as of May 5, 2013 (Exhibit GD2A-3);
   3. iii. Letter from the Commission dated June 14, 2013, informing the Appellant that the decision made in her case on May 17, 2013 [June 6, 2013] was upheld (Exhibit GD2A-4, Exhibits GD2A-1 to GD2A-4);
5. e) On January 7, 2014, the Appellant sent the Tribunal a copy of a medical certificate completed by Dr. André Beauchesne of the Centre médical St-Jacques and dated November 1, 2013 (2013-11-01), indicating that the Appellant was off work as of April 20, 2013, until an undetermined date (Exhibits GD5-1 and GD5-2);
6. f) On May 29, 2014, the Appellant explained that after the Commission was sent a Record of Employment amended or replaced by her employer, her benefit amount went from $216.00 to $291.00 a week (Exhibits GD6-1 to GD6-4);
7. g) On May 29, 2014, the Appellant sent the Tribunal a copy of the Record of Employment amended or replaced (serial number of Record of Employment amended or replaced: K01916473) on March 5, 2014, indicating that she worked as a [translation] “server” for Donarco Ltée, from December 25, 2012, to April 28, 2013, inclusive, and that she stopped working for the employer as a result of a dismissal (code M – Dismissal) (Exhibit GD7-1).
8. h) On May 29, 2014, the Appellant sent the Tribunal a copy of the Record of Employment amended or replaced (serial number of Record of Employment amended or replaced: K01916473) on March 5, 2014, indicating that she worked as a [translation] “server” for Donarco Ltée, from December 25, 2012, to April 28, 2013, inclusive, and that she stopped working for the employer as a result of a dismissal (code M – Dismissal) (Exhibit GD7-1).

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

1. a) The Appellant stated the circumstances that resulted in her dismissal;
2. b) She explained that she visited a doctor on November 1, 2013, who had been her family doctor for a short time. She stated that there was sometimes a two or three month wait for a medical appointment. She stated that the doctor whom she visited prescribed that she stop working as of April 20, 2013, given the state of her health at the time (Exhibit GD5-2);
3. c) She explained that she started receiving Employment Insurance sickness benefits around late November 2013 and that the benefits ended in February 2014 (Exhibits GD6-1 to GD6-4);
4. d) She stated that she liked her work, that she wanted to continue working and that the loss of her employment bothered her a great deal. She stated that she is currently unemployed but that she is looking for work. She specified that she is fit for work, even though she did not have a medical certificate to show it because her last family doctor died.

Submissions

[18] The Appellant presented the following observations and submissions:

1. a) She stated that when she was hired at Donarco Ltée in December 2012, she worked on Wednesday, Thursday, Saturday and Sunday. She stated that she did not work on Friday (Exhibits GD3-5 and GD3-23). She stated that she was not hired as a server in a restaurant and that these tasks were not agreed on at the start (Exhibits GD3-28 and GD3-29);
2. b) She explained that after approximately two months of work, she agreed, at her employer’s request, to work from Thursday to Sunday, inclusive, for 50 hours a week, in order to replace another employee (former owner) who left on vacation for a scheduled period of about two or three weeks. She explained that she continued to replace the other employee after he returned from vacation because he was sick and unable to return to work. She specified that she continued to replace the employee until the situation was resolved, but that the person whom she was replacing died in the end;
3. c) She explained that she found it increasingly difficult to work for four consecutive days, about 50 hours of work, a situation that was not anticipated at the start, and that she was starting to get tired. She also specified that she had to visit a doctor as a result of the fatigue that she experienced because of her work hours (Exhibits GD3-5, GD3-28 and GD3-29);
4. d) She also stated that she reduced her availability because she no longer wanted to work Thursdays and Fridays, when she had to serve lunches alone, and those days were very busy and did not pay well (Exhibits GD3-17 and GD3-28). She stated that she also served as a replacement on Monday, that she never missed a day of work and that she never arrived late. She explained that after work, she was tired and she had had enough of her hours (Exhibits GD3-22 to GD3-26);
5. e) She explained that she found even more tiring the fact that she had to cross paths with a new employee working at the bar at the establishment and with whom she did not get along well. She explained that she did not want to see this person during shift changes every other Friday, a situation that the Appellant dreaded, especially since it was a busier day. She described situations that she should not have to [translation] “endure” (for example, the new employee took up the Appellant’s workspace with her material because she arrived too early to work; she accused the Appellant of taking a beer from the refrigerator without paying for it; and she had a [translation] “foolish” attitude with her in front of clients) (Exhibit GD3 28). She also stated that she no longer wanted to work during the week in the presence of the other employee who [translation] “talked to her foolishly in front of clients” and who treated clients who came to see the Appellant [translation] “foolishly” (Exhibit GD3-5);
6. f) She stated that the employer was aware of the situation but that he did not do anything to rectify it or find a solution to the problem that she presented to him. She stated that the employer practically told her that it was her fault if there were not many clients at the bar (Exhibits GD3-5, GD3-17, GD3-28 and GD3-29);
7. g) She explained that she then felt very tired and that she asked her employer to work for two days a week. She specified that she did not ask to start working again for four days a week as she did at the start of her employment (Wednesday, Thursday, Saturday and Sunday) because she was too tired, but that it would probably have been possible after a few weeks of rest;
8. h) She stated that the employer told her that he agreed that she could work two days a week and that he would look for someone to replace her the other two days. She stated that even though her employer told the Commission that this was not true and that he did not agree to her request to work two days a week, the Commission should have determined that the employer was not telling the truth. She stated that she submitted evidence that her employer wanted to hire a person to work four days a week but that the Commission did not accept the evidence. She stated that she told the Employment Insurance officer that her employer told her that he would try to find someone to work two days a week, but that if he had to, he would hire someone to work four days a week. She added that her employer lied to her, that he also lied to Employment Insurance, and that she found the decision made in her case unfair. She stated that, despite this situation, the Commission’s decision was upheld (Exhibits GD3-22 to GD3-26). She stated that she had evidence that the employer lied to her and to Employment Insurance by indicating that he was looking for a replacement to work two days a week (Exhibit GD3-28). She stated that, after her employment ended, the employee who succeeded her told her that the employer never offered her two days a week of work, but that he absolutely wanted someone to work four days a week (from Thursday to Sunday, inclusive) (Exhibit GD3-31, Exhibits GD2-1 and GD2-2);
9. i) She stated that her employer intended to hire a person to work four days a week, even though another person told the Appellant that she would have agreed to work two days a week. She noted that the employer preferred to hire a new person who agreed to work full time (Exhibits GD3-17 and GD3-28);
10. j) She stated that the information that she provided to the Commission was not all in the file because the Commission did not consider it relevant enough. She also stated that she was aware of the existence of “quotas” for Employment Insurance and that this situation could explain why she was not entitled to receive Employment Insurance benefits. She stated that she felt [translation] “harassed” by the Employment Insurance officer’s repeated questions about whether it was true that her employer (R. S.) told her that he would try to find another person, therefore allowing her to work two days a week. The Appellant expressed her dissatisfaction with her treatment by the Employment Insurance officer with whom she discussed her file (Exhibits GD3-22 to GD3-26);
11. k) She stated that she first received a letter from the Commission, on May 28, 2013, informing her that her Employment Insurance benefit claim would start on May 5, 2013 (Exhibit GD2A-2), and then received another letter from the Commission, on June 6, 2013, informing her that she was no longer entitled to receive benefits because she stopped working for Donarco Ltée by reason of her misconduct (Exhibit GD2A-3);
12. l) She stated that her employer prevented her from working for other employers by providing bad references for her (Exhibits GD6-1 to GD6-4).

[19] The Commission presented the following observations and submissions:

1. a) The Commission explained that subsection 30(2) [subsection 30(1)] of the Act stipulates that an indefinite disqualification is imposed if it is established that the claimant lost the employment by reason of his or her misconduct. It specified that for the alleged action to constitute misconduct under section 30 of the Act, it must have been wilful or deliberate or so reckless or negligent as to approach wilfulness. There must also have been a causal relationship between the misconduct and the dismissal (Exhibit GD4-5);
2. b) It explained that an employer has the right to expect employees to report to work in a regular manner and remain on the job until their work period is over. It noted that this whole question of regular attendance at work is without any doubt a significant factor for the productivity of a business. The Commission also specified that it is obligatory for anyone wanting time off or foreseeing an absence to first inform the employer and seek permission. However, the Commission noted that whether a dismissal as a result of misconduct or voluntary leaving without just cause is involved, the fact remains that it falls under sections 29 and 30 of the Act. It explained that it does not matter whether the case is one of loss of employment through misconduct or voluntary separation without just cause provided that a disqualification would be warranted in either case. Both grounds could be mentioned in the notice of disqualification sent to the claimant (Exhibit GD4-5);
3. c) It explained that on occasion, a claimant’s own actions will lead to their dismissal. It specified that, in such cases, the reason for separation may be determined to be voluntary leaving. It gave as an example the case of an employee who is attending a course of instruction and informs their employer that they will be less available for work than they were previously. It noted that in this case, the employee is inviting the employer to terminate their employment contract. It added that if the employer dismisses the claimant, it is considered a case of voluntary separation as the dismissal is merely the logical outcome (Exhibit GD4-5);
4. d) It found that the Appellant’s actions constituted misconduct within the meaning of the Act because she created the situation that resulted in her dismissal. It explained that the Appellant’s normal work schedule was four days a week and that the Appellant herself wanted to work Fridays when they became available because it was a profitable day. The Commission stated that the facts on file show that the owner was regularly present on Fridays to help as needed. It stated that when the Appellant was informed that by reducing her availability, she risked losing her employment, she did not offer to work other days. The Commission noted that the Appellant’s work schedule since being hired was four days a week and that the tasks were known. It stated that by refusing days of work or by refusing to carry out certain tasks, the Appellant risked being dismissed. It stated that if the work was intolerable and the Appellant was tired to that point, she could have asked for a break or visited a doctor, which she did not do. The Commission stated that the Appellant also contradicted herself regarding the tasks to do. It indicated that the Appellant initially stated that serving lunches was not agreed on at the start, then stated that when she was hired, she knew that she had to serve frozen meals but that Fridays were too difficult (Exhibit GD3-28). The Commission noted that the tasks did not change considerably, that they were known at the start, and that the Appellant wanted to work on Fridays. The Commission stated that the Appellant should have reasonably expected that Fridays would be busier (Exhibit GD4-6);
5. e) Concerning the issue of a genuine conflict between the Appellant and another employee, the Commission stated that occasional friction, animosity or conflict is certainly not going to improve the work atmosphere, but these situations do not in themselves constitute just cause for leaving employment. It explained that if each person makes a reasonable effort to accommodate differences and find a common ground, the situation should not degenerate into constant or irresolvable conflict. The Commission stated that it did not render a judgment on the fact that the Appellant had to endure the conflict situation. It noted that, on the other hand, if the conflict occurred every third Friday, or every two weeks as indicated by the Appellant, and the situation was unacceptable, the Appellant could have asked to work another day or looked for another job instead of reducing her schedule to two days a week if the reasons were that Fridays were too busy and she had a conflict during her exchanges with the other server at that time (Exhibit GD4-6);
6. f) It stated that the Appellant was warned that she risked losing her employment by reducing her work hours. It noted that the Appellant may disagree by stating that the employer could have found another person to work two days, but that she cannot tell an employer how to manage staff. The Commission explained that even if it contacted the employee who replaced her, and the employee confirmed that she could have worked only two days, the Commission maintained that the Appellant was the one who created the situation by reducing her hours. The Commission noted that the employer never stated that he was looking for an employee to work two days only. It noted that the employer warned the Appellant that it would be difficult to find someone to work two days a week and that if an employee wanted to work four days, the employee would be hired. The Commission specified that the employer’s needs did not need to be discussed (Exhibit GD4-6).

Analysis

[20] Although the Act does not define misconduct, the case law indicates the following in Tucker (A-381-85):

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

[21] In this decision (Tucker, A-381-85), Justice Mark R. Macguigan of the Federal Court of Appeal also reiterated the following statements of Justice Reed of the Court:

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

[22] In Mishibinijima (2007 FCA 36), Justice Nadon of the Court stated the following:

Thus, there will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.

[23] The Court defined the legal notion of misconduct under subsection 30(1) of the Act as wilful misconduct, 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).

[24] The decisions rendered in Cartier (A 168 00) and MacDonald (A-152-96) uphold 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.

[25] In McKay Eden (A 402 96), Justice McDonald of the Court made the following clarification:

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.

[26] For the alleged act to constitute misconduct under section 30 of the Act, it must be 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.

[27] Determining whether an employee’s conduct that results in the loss of that person’s employment constitutes misconduct is a question of fact to be decided based on the circumstances of each case.

[28] In this case, the Appellant’s alleged action, namely, reducing her availability to work only two days a week, does not constitute misconduct within the meaning of the Act.

[29] The medical evidence on file shows that the Appellant was unable to work for medical reasons as of April 20, 2013, during the period in which she was still employed by Donarco Ltée and a number of days before her dismissal on April 28, 2013 (Exhibits GD5-1 and GD5-2).

[30] The Tribunal also notes that even though the Appellant submitted medical evidence a posteriori, she stated a number of times that she felt tired as a result of working for four consecutive days, about 50 hours of work, and that she planned to visit a doctor (Exhibits GD3-5, GD3-28 and GD3-29).

[31] The Appellant also specified that there was sometimes a two or three month wait for a medical appointment. She stated that the doctor whom she visited prescribed that she stop working as of April 20, 2013, given the state of her health at the time (Exhibit GD5-2).

[32] In this context, the Tribunal does not accept the Commission’s submission that “if the work was intolerable and the Appellant was tired to that point, she could have asked for a break or visited a doctor, which she did not do.” (Exhibit GD4-6).

[33] The Appellant also reiterated at the hearing that when she was hired in December 2012, she worked on Wednesday, Thursday, Saturday and Sunday. She therefore could use Friday to recover (Exhibits GD3-5 and GD3-23).

[34] The Appellant’s uncontested testimony also indicated that her work schedule was then changed after two months of work. She stated that she agreed, at her employer’s request, to work Thursday to Sunday, inclusive, to replace another employee until he returned from vacation. However, the situation was prolonged because the employee who she was temporarily replacing did not return to work. Even though the Appellant stated that she had wanted to work Friday because it was a more profitable day, she also explained that she did not receive the necessary support from her employer to be able to carry out all her tasks (Exhibits GD3-23 and GD3-24).

[35] The situation described by the Appellant helps put into perspective the situation in which she worked and that led to her request to work only two days a week, and includes a very significant reason for the Appellant’s request, namely, that she no longer wanted to work in the presence of another employee whom she encountered when she changed shifts.

[36] The Commission explained in its submissions that the Appellant’s work schedule since being hired was four days a week and that the tasks were known (Exhibit GD4-6). However, the Commission failed to take into account that when she was hired, the Appellant did not work four consecutive days a week, as the Appellant indicated in her benefit claim and reiterated at the hearing (Exhibits GD3-5 and GD3-23).

[37] In addition, regarding the Appellant’s request to work two days a week and the response from her employer, the Tribunal is of the view that contradictory statements were made in that regard by the parties of record.

[38] The Appellant stated that her employer agreed to her request to work two days a week, but that in the end he preferred to hire another person to work four days a weeks, resulting in the Appellant’s dismissal.

[39] The employer stated that he informed the Appellant that if he found a person who wanted to work four days a week, he would hire that person (Exhibits GD3-16 and GD3-27).

[40] There are discrepancies between the employer’s version and the Appellant’s version concerning this fundamental factor that led to the Appellant’s dismissal. However, the Tribunal gives more weight to the Appellant’s credible testimony at the hearing. Her testimony was consistent, detailed and devoid of contradictions. She therefore provided a more complete description of her work history, the reasons behind her request to work only two days a week and the circumstances that led to her dismissal.

[41] The Tribunal also finds contradictory and ambiguous the Commission’s analysis that led to its decision to first accept the Appellant’s benefit claim then to disqualify her from receiving benefits by reason of her misconduct (Exhibits GD2A-2, GD2A-3, GD3-18 and GD3-19).

[42] In a statement made on May 16, 2013, the employer informed the Commission of the Appellant’s reasons for wanting to work two days a week (Exhibit GD3-16). The Appellant gave her version of the facts in a statement submitted the same day (Exhibit GD3-17). The Commission then stated that it informed the Appellant, on May 21, 2013, of the decision made in her case and that she could [translation] “appeal from the decision” (Exhibit GD3-17).

[43] However, the evidence on file indicates that in a letter dated May 28, 2013, after becoming acquainted with the employer’s version and the Appellant’s version of the facts, the Commission initially informed the Appellant that her benefit period would start on May 5, 2013 (Exhibit GD2A-2). Then, on June 6, 2013, without having obtained additional or different information from the parties of record, the Commission sent a new letter (notice of decision) to the Appellant informing her that she was not entitled to receive regular Employment Insurance benefits as of May 5, 2013 (Exhibits GD2A-3, GD3-18 and GD3-19). The Commission provided no explanation in that regard in the submissions that it provided on October 31, 2013, to explain why it changed its decision (Exhibits GD4-1 to GD4-9).

[44] Despite this situation, the Tribunal finds that the evidence submitted shows that the Appellant was not dismissed as a result of a willful or deliberate act (Tucker, A 381 85, and McKay Eden, A-402-96).

[45] The Tribunal finds that the Appellant’s alleged act was not of such a scope that she could normally have anticipated that it would likely result in her dismissal (Mishibinijima, 2007 FCA 36).

[46] In summary, the Tribunal finds that the Appellant was not dismissed by reason of her misconduct and that, as a result, the Commission’s decision to disqualify her from receiving Employment Insurance benefits is not justified under the circumstances (Cartier, A-168-00, MacDonald, A-152-96, and Namaro, A-834-82).

[47] The Tribunal finds that the issue under appeal has merit.

Conclusion

[48] The appeal is allowed.