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Reasons and decision
Decision
[1] The appeal is allowed and the matter is referred back to the General Division (Employment Insurance Section) for a new hearing.
Introduction
[2] On September 25, 2015, the General Division of the Tribunal found that:
- The Appellant had lost her employment as a result of her own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act (Act).
[3] The Applicant filed an application for leave to appeal to the Appeal Division on October 28, 2015, after receiving the General Division’s decision dated October 6, 2015. Leave to appeal was granted on November 3, 2015.
Issue
[4] The Tribunal must decide whether the General Division erred in finding that the Appellant lost her employment by reason of her own misconduct under sections 29 and 30 of the Act.
The law
[5] Under subsection 58(1) of the Department of Employment and Social Development Act, the following are the only grounds of appeal:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The Board of Referees erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) 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.
Standards of review
[6] The Appellant made no submissions concerning the applicable standard of review.
[7] The Respondent submits that the applicable standard of review for questions of law is correctness and the standard of review for questions of mixed fact and law is reasonableness - Pathmanathan v. Office of the Umpire, 2015 FCA 50.
[8] The Tribunal notes that the Federal Court of Appeal in the case of Canada (AG) v. Jean, 2015 FCA 242, indicates in paragraph 19 of its decision that when the Appeal Division "acts as an administrative appeal tribunal for decisions rendered by the General Division of the Social Security Tribunal, the Appeal Division does not exercise a superintending power similar to that exercised by a higher court."
[9] The Federal Court of Appeal further indicated that:
Not only does the Appeal Division have as much expertise as the General Division of the Social Security Tribunal and thus is not required to show deference, but an administrative appeal tribunal also cannot exercise the review and superintending powers reserved for higher provincial courts or, in the case of "federal boards", for the Federal Court and the Federal Court of Appeal.
[10] The Federal Court of Appeal concludes by emphasizing that "[w]here it hears appeals pursuant to subsection 58(1) of the Department of Employment and Social Development Act, the mandate of the Appeal Division is conferred to it by sections 55 to 69 of that Act."
[11] The mandate of the Appeal Division of the Tribunal described in Jean was subsequently confirmed by the Federal Court of Appeal in Maunder v. Canada (A.G.), FCA 274.
[12] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, 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, the Tribunal must dismiss the appeal.
Analysis
[13] The Appellant submitted an initial claim for benefits that took effect on November 3, 2013. On September 11, 2014, the employer, Alcoa Ltée, issued a Record of Employment indicating a period of employment from November 27, 2013, to August 18, 2014, that ended after a dismissal.
[14] On October 29, 2014, the Appellant stated that she had been dismissed for failing to come into work due to a family dispute. On December 4, the employer confirmed that she had officially been terminated on September 3, 2014, due to her high rate of absenteeism.
[15] The Respondent concluded that the Appellant lost her employment by reason of her own misconduct. Consequently, the Respondent imposed an indefinite disqualification effective August 31, 2014, pursuant to subsection 30(1) of the Act. This decision resulted in an overpayment of $ 3,006.00. The Appellant was informed via a notice of debt sent to her on December 6, 2014. Following the Appellant's request for reconsideration, the Respondent and the General Division upheld the initial decision to disqualify the Appellant from receiving benefits following her job loss due to misconduct.
[16] The Appellant is now appealing the General Division’s decision on the grounds of paragraph (c) of subsection 58(1) of the Department of Employment and Social Development Act.
[17] The Appellant maintains that the General Division's decision does not mention the Appellant’s mental state when deciding on the voluntary or wilful nature of the misconduct. She argues that this essential element was entered into evidence and was the subject of a representation by her representative. She states that she had done everything to meet the conditions of her probation, that her physical and mental health had suffered during this time, and that she was being monitored by a psychologist and by her doctor.
[18] The Respondent recommends that the Tribunal allow the Appellant's appeal because the General Division did not explain why it rejected the Appellant's evidence.
[19] Misconduct, within the meaning of section 30 of the Act, is defined as an intentional behaviour, meaning that it is conscious or deliberate.
[20] To determine whether the Claimant's actions constitute misconduct justifying termination essentially entails a review and appreciation of facts – Canada (A.G.) v. Larivée, 2007 FCA 312.
[21] The Tribunal is of the opinion that by finding that the Appellant had lost her employment as a result of her misconduct, the General Division failed to take into consideration the overall relevant facts in the file and therefore has committed an error in law – Bellefleur v. Canada (A.G.), 2008 FCA 13.
[22] In fact, the General Division's analysis makes no mention of the Appellant's evidence concerning her mental state or her assertion that her behaviour was neither wilful nor deliberate.
[23] The Tribunal reiterates that when it is faced with contradictory evidence, the General Division cannot disregard it. It must consider it. If it decides that the evidence should be dismissed or assigned little or no weight, it must explain the reasons for the decision - Parks v. Canada (A.G.), A-321-97.
[24] Having regard to the arguments in support of the Appellant’s appeal and to the Respondent’s position on appeal, and after reviewing the file, the Tribunal agrees that the appeal should be allowed.
Conclusion
[25] The appeal is allowed and the matter is referred back to the General Division (Employment Insurance Section) for a new hearing.