Employment Insurance (EI)

Persons in attendance

[1] The Appellant, J. J., attended the in‑person hearing held on November 4, 2014, in the city of Quebec (X).

Decision

[2] The Social Security Tribunal of Canada (the Tribunal) finds that the Appellant lost her employment by reason of her misconduct under sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[3] On February 10, 2014, the Appellant submitted an initial benefit claim that took effect on February 2, 2014. The Appellant stated that she worked for Accès Services Santé GSS Inc. from October 15, 2012, to January 30, 2014, inclusive, and that she stopped working for this employer as a result of a dismissal or suspension (Exhibits GD3‑3 to GD3‑14).

[4] On April 1, 2014, the Commission informed the Appellant that she was not entitled to receive regular Employment Insurance benefits as of February 2, 2014, because she stopped working for Accès Services Santé GSS Inc. on January 29, 2014, by reason of her misconduct (Exhibits GD3‑20 and GD3‑21).

[5] On April 28, 2014, the Appellant submitted a Request for Reconsideration of an Employment Insurance (EI) decision (Exhibits GD3‑22 to GD3‑24).

[6] On May 27, 2014, the Commission informed the Appellant that it was upholding the decision rendered in her case on April 1, 2014 (Exhibit GD3‑28).

[7] On June 11, 2014, the Appellant submitted an Application Requesting Leave to Appeal to the Appeal Division of the Tribunal (Exhibits GD2‑1 to GD2‑7). The Tribunal specified that even though the Appellant did not use the form entitled “Notice of Appeal – General Division – Employment Insurance Section” to submit her appeal, this application was processed as a regular appeal to the Tribunal’s General Division.

[8] On July 7, 2014, the Commission informed the Appellant that the number indicated in the notice of administrative review decision was not correct and that she would be sent a new notice with the correct number (Exhibit GD3‑29).

[9] On July 7, 2014, the Commission again informed the Appellant that it was upholding the decision rendered in her case on April 1, 2014. The Commission specified that this notice replaced the notice sent to her on May 27, 2014 (Exhibits GD3‑29 to GD3‑31).

[10] On July 17, 2014, the Tribunal informed Accès Services Santé GSS Inc. that if it wanted to become an “added party” in this case, it had to submit an application to that effect no later than August 1, 2014 (Exhibits GD5‑1 and GD5‑2). The employer did not follow up on this request.

Type of hearing

[11] The hearing was held in person for the reasons set out in the notice of hearing dated September 18, 2014 (Exhibits GD1‑1 to GD1‑3).

Issue

[12] The Tribunal must determine whether the Appellant lost her employment by reason of her misconduct under sections 29 and 30 of the Act.

Applicable law

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

[14] Concerning a “disqualification” or a “disentitlement” from receiving Employment Insurance benefits, paragraphs 29(a) and (b) of the Act state the following:

… For the purposes of sections 30 to 33, (a) “employment” refers to any employment of the claimant within their qualifying period or their benefit period; (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; …

[15] Concerning a “disqualification” as a result of “misconduct” or “leaving without just cause,” subsection 30(1) of the Act states the following:

… 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 (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 (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.

[16] Concerning the “length of disqualification,” subsection 30(2) of the Act states the following:

… 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.

Evidence

[17] The evidence in the file is the following:

1. (a) A Record of Employment dated March 17, 2014, states that the Appellant worked for Accès Services Santé GSS Inc., from October 1, 2012, to January 29, 2014, inclusive, and that she stopped working for this employer for the reason other (code K – Other)(Exhibit GD3‑15);
2. (b) On March 24, 2014, Accès Services Santé GSS Inc. stated that the Appellant, who was an activity leader for a religious community, was dismissed because she refused to comply with the new schedule, which included evening shifts, as of January 2014. The employer stated that when the Appellant was hired, it was established that she would work evenings, but that the schedule’s implementation was delayed. The employer explained that at a meeting in January 2014, the Appellant stated that she could not comply with the new schedule because she had to be with her spouse in the evening. The employer stated that the Appellant’s new schedule added up to three days of work: from 10:00 a.m. to 5:00 p.m. on Monday, and from 11:00 a.m. to 7:00 p.m on Tuesday and Thursday. The employer explained that it could not have the Appellant keep working only days because it had to meet its client’s needs and that it was established long ago that an activity leader was required in the evening (Exhibit GD3‑16);
3. (c) In her Notice of Appeal submitted on June 11, 2014, the Appellant provided a copy of the following documents:
   1. i. The Commission’s letter dated May 27, 2014, informing her that the decision rendered in her case was upheld (Exhibit GD2‑5 or GD3‑28);
   2. ii. The Appellant’s letter of explanation dated June 11, 2014, to show that she was not dismissed by reason of her misconduct (Exhibits GD2‑6 and GD2‑7 or GD3‑23 and GD3‑24, and Exhibits GD2‑1 to GD2‑7).

[18] The evidence submitted at the hearing is the following:

1. (a) The Appellant referred to her work history with Accès Services Santé GSS Inc., and the circumstances that resulted in her dismissal;
2. (b) She submitted a copy of the letter of dismissal from her employer dated January 31, 2014 (Exhibit GD6‑1).

Submissions of the parties

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

1. (a) She stated that she was dismissed for refusing to work a different shift or schedule. She explained that she did not accept the changes made to her work schedule that resulted in her having to work evenings (Exhibits GD3‑7, GD3‑8, GD3‑17 and GD3‑18);
2. (b) She explained that Accès Services Santé GSS Inc. hired her as an activity leader in October 2012 to work about 20 hours a week to meet the needs of a client, the Monastère des Augustines de Québec. She noted that the recreation worker who preceded her at this location had worked days. She explained that she was hired to work an evening schedule. She specified that it was [translation] “an evening schedule trial period” established by the employer. The Appellant explained that she then worked three days a week, namely, from 9:00 a.m. to 5:00 p.m. on Tuesday, and from 11:00 a.m. to 7:00 p.m. on Wednesday and Thursday. She stated that when she was hired, she knew that an evening schedule trial period was in place. She specified that she accepted her employer’s offer (Exhibits GD2‑6, GD3‑23 and GD3‑24);
3. (c) She stated that a day schedule was then established starting in June 2013, and that she worked three days a week, from 9:00 a.m. to 4:00 p.m. (Exhibit GD3‑7). She explained that in January 2014, the employer returned to an evening schedule, and she worked from 9:00 a.m. to 5:00 p.m. on Tuesday, and from 11:00 a.m. to 7:00 p.m. on Wednesday and Thursday (Exhibits GD3‑17, GD3‑18, GD3‑23 and GD3‑24);
4. (d) She explained that when the evening schedule was in effect, she noticed that the nuns with whom she worked did not want to participate in the activities offered, in particular given their age and because they felt too tired at that time of day. She also stated that after the schedule changed (evening schedule), she was under the impression that her duties were changing because, in particular, she had to meet the needs indicated by attendants (such as feeding the nuns). She explained that her evening duties were to help the attendants feed the nuns and take them back to their rooms after supper. She stated that she found it denigrating to carry out attendant duties given her level of education, but her employer did not ask her to modify her duties. She stated that she found that the employer’s client was set on the idea of having a recreation worker in the evening and that she did not see the point of being present at the time stipulated according to the new schedule (Exhibits GD3‑17, GD3‑18, GD3‑23 and GD3‑24);
5. (e) She stated that when the day schedule was implemented, while she worked for the employer, the nuns were very satisfied with the service provided. She noted that the coordinator, the employees with whom she worked and the nuns had told her that the day schedule worked very well. She stated that in June 2013, the employer allowed her to work days for an indeterminate period (Exhibit GD3‑23). She stated that when she was told that she would work a day schedule, she took it for granted that the schedule would continue. She stated that she was satisfied that she would continue working according to the day schedule that had been established. She noted that she was given a day schedule and that she complied with the schedule;
6. (f) She stated that while she was working days, she also tried to reorganize her life and she became involved in other activities based on this work schedule. She specified that she worked about 20 hours a week for her employer for a rate of $14.00 an hour, and that she wanted to improve her financial situation. She explained that she committed in the evening to taking computer courses and to preparing to launch her business offering itinerant recreation worker services. She explained that it was not possible to change the schedule of courses that she was taking. She stated that she had friends who worked days and that they were available to train her only in the evenings. She specified that she then abandoned her plan to launch a business. She noted that a number of elements in her file were misinterpreted, such as the fact that she refused to comply with her employer’s schedule change in order to be with her spouse, which was not the case (Exhibits GD3‑17 to GD3‑19 and GD3‑23 to GD3‑27);
7. (g) She explained that the agency that hired her then informed her that the client wanted her to work evenings. She stated that her employer (the agency) explained to her in January 2014 that it had tried to arrange for her to continue working days, but that the client denied the request (Exhibits GD3‑7 and GD3‑8, GD3‑17, GD3‑ 18, GD3‑23 and GD3‑24);
8. (h) She stated that she was thrust into this situation and that she felt her rights were violated. She stated that she was misinformed and badly managed throughout her employment at the Monastère des Augustines de Québec. She explained that she had to take into account Accès Services Santé GSS Inc. and its coordinator, in addition to the manager of the Monastère des Augustines de Québec. She stated that she had to meet the needs of the nuns and that she also received instructions from the employees with whom she worked. She stated that there were discrepancies in the instructions given to her. She stated that she never received clear information concerning her work schedule and that everyone gave instructions. She stated that she had too many employers and that the situation was impossible to manage. She maintained that there was a significant lack of communication between the management and the employees and that she therefore no longer knew where she stood. She explained that her coordinator told her that everything was fine and that the employer was very satisfied while she was working days, whereas the manager told her otherwise (Exhibits GD3‑25 to GD3‑27 and GD2‑3);
9. (i) She stated that the change to her evening schedule was not significant and that the employer did not add hours of work, but only moved forward two hours. She stated that she was told when she was hired that she may have to work evenings. She stated that the employer told her that if she refused to comply with the schedule change, she would be dismissed. She stated that she still refused to comply with the schedule change because she found it useless and pointless to be working evenings, that the client paid her to do nothing and that the nuns had already told her that they were not interested in having evening activities (Exhibits GD3‑17 and GD3‑18);
10. (j) She explained that she was dismissed on January 29, 2014, because she did not want to work the evening schedule implemented by her employer since she had obligations in the evening at that time. She stated that if she had been told in advance and if she had not been led to believe that things would be sorted out, she would have been able to make arrangements because she loved her job. She maintained that there was no misconduct on her part. She stated that she performed her work without ever receiving a complaint (Exhibits GD3‑23, GD3‑24 and GD2‑3);
11. (k) She explained that she did not contact the agency that hired her following her dismissal because the agency had hired another person.

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

1. (a) Subsection 30(2) 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 own misconduct. The Commission 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. The Commission specified that there must also have been a causal relationship between the misconduct and the dismissal (Exhibit GD4‑3);
2. (b) The Commission stated that refusal to obey a legitimate and reasonable instruction of the employer may constitute misconduct, unless the person can justify the refusal and explain how the employer’s request is unreasonable (Exhibit GD4‑3);
3. (c) The Commission explained that the employer stated that the Appellant was dismissed because she did not comply with the request to work two evenings a week until 7:00 p.m., in order to meet the needs of a client, the Monastère des Augustines de Québec (Exhibit GD4‑3);
4. (d) The Commission noted that when she was hired, the Appellant knew that she had to work evenings. It stated that the employer’s requirement for her to work evenings was not unreasonable, especially since she was told when she was hired (Exhibits GD4‑3 and GD4‑4);
5. (e) The Commission explained that the facts show that the Appellant refused to work two evenings a week until 7:00 p.m. for personal reasons, namely, to take courses. It maintained that this situation could not constitute just cause and that these were personal reasons. The Commission noted that the Appellant had to try to retain her employment (Exhibit GD4‑4);
6. (f) The Commission stated that the Appellant’s employer was Accès Services Santé GSS Inc., and that she had to obey the orders from this agency. It stated that the Monastère des Augustines de Québec was the agency’s client, and that the agency had to meet the needs of the client. It explained that even though the nuns and the employees on site gave a different opinion about the work schedule, this did not change the fact that the Appellant had to comply with her employer’s instructions. It noted that the human resources director explained that the schedule had to be an evening schedule to meet the needs of the client. The Commission added that there was no issue of ambiguity as indicated by the Appellant (Exhibit GD4‑4);
7. (g) The Commission stated that the fact that the Appellant found it useless to work evenings since the nuns did not participate in the activities also did not constitute just cause. It stated that if the employer decided that a recreation worker was needed until 7:00 p.m., the Appellant had to meet the requirements, which were not unreasonable (Exhibits GD3‑3 and GD4‑4);
8. (h) The Commission determined that the fact that the employer allowed the Appellant to work days for a period also could not justify her refusal. It stated that the Appellant’s actions clearly showed a deliberate refusal to take into account her employer’s instructions (Exhibit GD4‑4);
9. (i) The Commission determined that the employer showed that the Appellant was dismissed as a result of her actions, which constituted misconduct under the Act. It determined that by adopting this behaviour, namely, by refusing to comply with her employer’s request, the Appellant acted deliberately and could not disregard the consequences of her actions. It added that an employee’s refusal to comply with a reasonable instruction of the employer constitutes misconduct under the Act (Exhibit GD4‑5).

Analysis

[21] While the Act does not define misconduct, the caw law indicates in Tucker (A‑381‑85) that:

In order 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.

[22] In Tucker (A‑381‑85), the Federal Court of Appeal (the Court) referred to Justice Reed of the Court’s statement that:

… 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 …

[23] In Mishibinijima (2007 FCA 36), 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.

[24] In McKay‑Eden (A‑402‑96), 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.

[25] 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 (Lemire, 2010 FCA 314).

[26] 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.

[27] In order to constitute misconduct within the meaning of section 30 of the Act, the alleged action 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.

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

[29] In this case, the Appellant’s alleged act, namely, refusing to work according to the evening schedule established by the employer in order to meet a client’s demand, clearly constitutes misconduct within the meaning of the Act.

[30] The Appellant acknowledged the facts that were alleged by her employer, Accès Services Santé GSS Inc., and that resulted in her dismissal. The employer’s request for her to work an evening schedule (from 9:00 a.m. to 5:00 p.m. one day a week, and from 11:00 a.m. to 7:00 p.m. two days a week) was not unreasonable. The Appellant knew what to expect when she was hired.

[31] The evidence shows that she initially worked according to the evening schedule established by her employer to meet the needs of a client, the Monastère des Augustines de Québec. Even though the Appellant stated that it was [translation] “an evening schedule trial period,” she first worked according to the evening schedule. The Appellant also stated that she had accepted her employer’s offer and that she was told when she was hired that she may have to work evenings (Exhibits GD3‑17, GD3‑18, GD3‑23 and GD3‑24).

[32] The Appellant also stated that the change to her evening schedule was not significant and that the employer did not add hours of work, but only moved around or forward two hours of work in the schedule. She also stated that the employer told her that if she refused to comply with the schedule change, she would be dismissed (Exhibits GD3‑17 and GD3‑18).

[33] In this situation, when the employer established a day schedule starting in June 2013, the Appellant could not take it for granted that the employer would maintain the schedule over the long term. The Appellant herself stated that in June 2013, the employer allowed her to work days for an indeterminate period (Exhibit GD3‑23).

[34] By refusing to comply with the evening schedule when it was implemented again in January 2014, the Appellant willingly chose to compromise her employment. The Tribunal finds that the Appellant could not have disregarded the impact of her refusal to work according to the established schedule and that she therefore knowingly chose to disregard her employer’s very clear instruction. In acting as she did, the Appellant broke the relationship of trust between her and her employer. The Appellant disregarded the standards of behaviour that the employer had the right to expect of her (Tucker, A‑381‑85).

[35] The Tribunal finds that the Appellant’s alleged act was of such magnitude that she should normally have foreseen that it would likely result in her dismissal. She knew that her conduct was such as to impair the performance of the duties owed to her employer and that dismissal was a possibility (Tucker, A‑381‑85; Mishibinijima, 2007 FCA 36).

[36] The Tribunal does not accept the Appellant’s submissions attempting to justify her refusal to work again according to the evening schedule as of January 2014.

[37] The Appellant stated that the day schedule worked very well, that the nuns were very satisfied with the services provided at that time, and that they did not want to participate in the activities offered in the evening, in particular given their age and because they felt too tired at that time of day. However, despite her assessment of the situation, the Appellant was not in charge of establishing the work schedule. She had to comply with her employer’s requirement.

[38] The Appellant also stated that while she was working days, she committed to taking training courses in order to launch a business and improve her financial situation. This circumstance does not justify her refusal to comply with the established evening schedule. These are personal reasons. The Appellant was well aware that having to work evenings was a possibility.

[39] The Tribunal also does not accept the Appellant’s submission that she was misinformed and badly managed throughout her employment at the Monastère des Augustines de Québec and that there were discrepancies in the instructions given to her. The Appellant had only to defer to her employer, Accès Services Santé GSS Inc., and comply with its legitimate and reasonable request.

[40] The Tribunal finds that the Appellant was dismissed as a result of a wilful and deliberate action (Tucker, A‑381‑85; McKay‑Eden, A‑402‑96; Mishibinijima, 2007 FCA 36).

[41] This is why the Tribunal finds that this action constitutes misconduct under the Act and that the Appellant lost her employment through her own fault. Her dismissal is the direct consequence of her alleged action (Namaro, A‑834‑82; MacDonald, A‑152‑96; Cartier, A‑168‑00).

[42] However, the Tribunal states that the Appellant’s misconduct does not concern the quality of the work that she accomplished at her job. The Appellant also noted that she had never received a complaint in this regard. Her misconduct under the Act essentially relates to her refusal to work according to her employer’s schedule. That is why she was dismissed.

[43] On the basis of the aforementioned case law and the evidence submitted, the Tribunal finds that the Appellant lost her employment by reason of her misconduct and that as a result, the Commission’s decision to disqualify her from receiving Employment Insurance benefits is justified under the circumstances.

[44] The Tribunal finds that there are no grounds for appeal in this case.

Conclusion

[45] The appeal is dismissed.