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Reasons and decision
Decision
[1] The Social Security Tribunal of Canada (Tribunal) dismisses the appeal.
Introduction
[2] On January 31, 2017, the Tribunal’s General Division determined that the Appellant had lost his employment by reason of his own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (Act).
[3] On February 14, 2017, the Appellant filed an application for leave to appeal before the Appeal Division. Leave to appeal was granted on May 9, 2017.
Type of hearing
[4] The Tribunal determined that the appeal would be heard via teleconference for the following reasons:
- the complexity of the issue or issues;
- the fact that the parties’ credibility was not a key issue;
- the cost-effectiveness and expediency of the hearing choice; and
- the need to proceed as informally and as quickly as possible while complying with the rules of natural justice
[5] The Appellant and his representative, Counsel Maxime Roberge, attended the hearing. The Respondent did not attend despite having received the notice of hearing.
The law
[6] 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 General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- c) the General Division 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] Did the General Division err in finding that the Appellant had lost his employment by reason of his own misconduct within the meaning of sections 29 and 30 of the Act?
Standard of review
[8] The parties agree that the appropriate standard of review for questions of law is correctness, and that the appropriate standard of review for questions of mixed fact and law is reasonableness—Pathmanathan v. Office of the Umpire, 2015 FCA 50.
[9] The Tribunal notes that the Federal Court of Appeal in the case of Canada (Attorney General) v. Jean, 2015 FCA 242, indicates in paragraph 19 of its decision that “[w]hen it 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.”
[10] The Federal Court of Appeal further indicated the following:
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.
[11] 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.”
[12] The mandate of the Tribunal’s Appeal Division as described in Jean was later confirmed by the Federal Court of Appeal in Maunder v. Canada (Attorney General), 2015 FCA 274.
[13] 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 had made in a perverse or capricious manner or without regard for the material before it or its decision was unreasonable, the Tribunal must dismiss the appeal.
Analysis
[14] The Appellant argues that the Respondent did not inform the General Division in a timely manner of the employer's amended Record of Employment, which reports a termination of the Appellant's employment on grounds other than misconduct. The Appellant argues that the General Division's review of this evidence is necessary to respect the principles of natural justice and to determine his eligibility for benefits.
[15] The Appellant argues that the employer only issued the amended Record of Employment on December 23, 2016, and that he tried to submit it to a representative of the Respondent. The hearing before the General Division was scheduled for January 17, 2017. The representative for the Respondent would therefore have mentioned that he had to wait for the General Division’s decision.
[16] The Appellant is therefore asking, given the circumstances, that the Appeal Division send the file back to the General Division for a new hearing on the matter.
[17] The Respondent argues that the fact that the employer indicates another reason for dismissal on the Record of Employment does not change its decision; the facts alleged by the employer remain the same and led to his dismissal.
[18] During the appeal hearing, the Tribunal asked the Appellant to provide the settlement agreement signed by the parties after his grievance disputing his dismissal. The agreement was filed with the Tribunal (AD4-1 to AD4-4).
[19] Even if the Tribunal was of the opinion that there was a breach of natural justice, the mere existence of an amended Record of Employment or a settlement agreement is not in and of itself determinative of the issue of whether an employee was dismissed for misconduct.
[20] It is important to remember that the General Division is not bound by how the employer and employee or a third party may characterize the grounds on which an employment has been terminated. It is for the General Division to assess the evidence and come to a decision.
[21] Before a settlement agreement can be used to contradict an earlier finding of misconduct, there must be some evidence in respect of the misconduct that would contradict the position taken by the employer during the investigation by the Respondent at the time of the hearing before the General Division. The Tribunal finds that the settlement document filed in the present case does not have this effect.
[22] There is nothing in the settlement document in question that would permit one to infer that the employer withdrew its allegation of misconduct against the Appellant. It neither expressly nor implicitly includes admissions that the facts on file with the Appellant were erroneous or did not accurately reflect the events as they had occurred. The settlement document simply does not contain any retraction from the employer regarding the events that had initially led to the Appellant’s dismissal.
[23] The Appellant was employed as a telephone operator in a call centre. His employer accused him of diverting calls so he would not have to respond to clients, of time-theft and of using techniques to dodge calls. He was also accused of deliberately hanging up on incoming calls.
[24] The evidence before the General Division supports its conclusion that the Appellant was refusing to follow the employer's instructions with regard to respect for the rules of conduct toward clients. The employer conducted a search over a period of four months in order to clarify the facts. Out of 120 employees, two made codes to enter into the system—the Appellant and his friend. This allowed the Appellant to return to the bottom of the waiting list so that he did not receive calls.
[25] The Appellant submits that the situation resulted from a technical problem. The General Division did not give credibility to the Appellant's version. If the situation was the result of technical problems—which was not proven—according to the General Division, the employees had instructions to immediately call technical support because it could affect their statistics. The Appellant did not call technical support about this technical problem. In July 2015, the Appellant had also been suspended for similar reasons and had been warned not to do this again or he would risk dismissal.
[26] Although it is true that the Appellant’s dismissal was later changed to a dismissal without cause by the involved parties, this fact does not change the nature of the misconduct that initially led to the Appellant’s dismissal—Canada (Attorney General) v. Boulton, 1996 FCA 1682; Canada (Attorney General) v. Morrow, 1999 FCA 193.
[27] For the above-mentioned reasons, the appeal is dismissed.
Conclusion
[28] The Tribunal dismisses the appeal.