Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On April 2, 2013, a board of referees determined that:

• The Appellant lost his employment by reason of his own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (the “Act”).

[3] The Applicant requested leave to appeal to the Appeal Division on May 17, 2013. Leave to appeal was granted on January 8, 2015.

Type of hearing

[4] The Tribunal held a telephone hearing for the following reasons:

• The complexity of the issue(s) under appeal.
• The fact that the credibility of the parties is not anticipated being a prevailing issue.
• The information in the file, including the need for additional information.
• The requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness, and natural justice permit.

[5] The Appellant was present at the hearing.  The Respondent was represented by Carol Robillard. The Employer was represented by Suzanne Bélanger and Diane Soares.

The law

[6] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

1. the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. the board of referees erred in law in making its decision, whether or not the error appears on the face of the record; or
3. The board of referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Issue

[7] The Tribunal must decide if the board of referees erred in fact and in law when it concluded that the Appellant was dismissed because of his own misconduct pursuant to sections 29 and 30 of the Act.

Arguments

[8] The Appellant submits the following arguments in support of his appeal:

• The board failed and ignored paperwork and facts that demonstrate that the employer did not follow its disciplinary policy;
• He was not given the proper number of warnings before his dismissal;
• He was falsely accused by his employer of incidents that occurred when he was not even at work;
• He worked past the date of his last late arrival without any recrimination by the Employer;
• A change in HR led to discrimination against him since he had previously been late with the tolerance of his employer;
• He did not lose his employment because of his misconduct.

[9] The Respondent submits the following arguments against the appeal:

• Misconduct occurs when the claimant knew or ought to have known that his conduct was such that it would result in dismissal;
• However, the notion of willful misconduct does not imply wrongful intent, it is sufficient that the misconduct be conscious, deliberate or intentional.
  Finally, there must be a causal link between the misconduct and the employment. In other words, the misconduct must be a breach of an express or implied duty resulting from the contract of employment;
• The finding of the board that the Appellant did in fact lose his job due to misconduct pursuant to section 30 of the Act is reasonable;
• The board of referees considered the material before it in determining that the Appellant in fact lost his employment as a result of being late for work. A proper application of the legal test of misconduct leads to the reasonable conclusion that having been counselled by HR and signing a last chance agreement the Appellant would have been aware that being late again would result in dismissal;
• The actions of the Appellant were careless and negligent and did constitute misconduct;
• There is nothing in the decision of the board of referees to suggest that it was biased against the Appellant in any way, or that it did not act impartially; nor that there is any evidence to show there was a breach of natural justice present in this case.

Standard of review

[10] The Appellant did not make any representations regarding the applicable standard of review.

[11] The Respondent submits that the applicable standard of review for mixed questions of fact and law is reasonableness - Canada (AG) v. Hallée, 2008 FCA 159.

[12] The Tribunal acknowledges that the Federal court of appeal determined that the standard of review applicable to a decision of a board of referees (now the General Division) or an Umpire (now the Appeal Division) regarding questions of law is the standard of correctness - Martens c. Canada (AG), 2008 FCA 240 and that the standard of review applicable to questions of fact and law is reasonableness - Dunsmuir v. New Brunswick, 2008 SCC 9,Canada (AG) v. Hallée, 2008 FCA 159,

Analysis

[13] The board of referees unanimously dismissed the Appellant’s appeal finding that he had lost his employment because of the alleged offence; being repeatedly late for work and was therefore, subject to disqualification. Having been late on several occasions, the Appellant was counselled by HR and signed a document acknowledging that it was his last chance agreement. He was afterwards then late again on October 23, 2013 and dismissed.

[14] The preponderant evidence before the board of referees shows that the HR representative met with the Appellant on September 12, 2012, to discuss his attendance and lateness issues. The Employer gave him a letter that specifically said that should any other issues occur before November 15, 2012, he would be terminated. The reception of this letter was acknowledged by the Appellant (AD2-67).

[15] By his own admission, the Appellant was late on October 23, 2012 (AD2-10, AD2-43). He was dismissed on November 5, 2012 for breaching the last chance agreement he had signed on September 12, 2012 (AD2-27).

[16] In the initial application for benefits, the Appellant admits having been late at least 7 or more times in the six months prior to his dismissal (AD2-11).

[17] On December 19, 2011, he had received a previous warning for his attendance and lateness issues (AD2-70).

[18] The preponderant evidence also clearly shows that the Appellant was aware of the consequence of him being late on October 23, 2012 (AD2-44).

[19] During the appeal hearing, the Appellant raised issues regarding the Employer, more particularly that he was wrongfully dismissed since the Employer did not follow its own disciplinary policy. However, the role of the board is not to determine whether the dismissal of an employee was wrongful or not, but rather to decide whether the act or omission of the employee amounted to misconduct within the meaning of the Act - Canada (AG) v. McNamara, 2007 FCA 107.

[20]  As mentioned by the Tribunal, the continued lateness and absenteeism was the crucial factor leading to his dismissal. The Appellant persisted in this course of action although he knew that he was very close to the threshold and that, considering his past warnings, going over the threshold would lead to a dismissal.

[21] The Tribunal finds that there is no evidence to support the grounds of appeal invoked by the Appellant or any other possible ground of appeal. The decision of the board of referees was open to it and is a reasonable one that complies with the law and the decided cases.

Conclusion

[22]    The appeal is dismissed.