Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On March 10, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that the Appellant had lost her employment by reason of her own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (Act).

[3] The Appellant requested leave to appeal to the Appeal Division on April 18, 2016, after receiving the General Division decision on March 16, 2016.

The law

[4] Subsection 58(1) of the Department of Employment and Social Development Act (DESD Act) states that the only grounds of appeal are the following:

1. a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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

[5] The Tribunal must decide whether the General Division erred when it concluded that the Appellant was dismissed because of her own misconduct pursuant to sections 29 and 30 of the Act.

Standard of review

[6] The Federal Court of Appeal has determined that the Appeal Division’s mandate is conferred to it by sections 55 to 69 of the DESD Act. The Appeal Division does not exercise a superintending power similar to that exercised by a higher court—Canada (Attorney General) v. Jean, 2015 FCA 242; Maunder v. Canada (Attorney General), 2015 FCA 274.

[7] 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

General Division decision

[8] The General Division found that even though the Appellant’s actions were not intentional, they were willful since she had breached her responsibility to enforce the clean desk policy as the last one to leave. The General Division found that the Appellant knew or ought to have known that violating the clean desk policy was a breach of her duty to the employer, such that dismissal was a real possibility.

Leave to appeal

[9] The Appeal Division granted leave to appeal on the basis that the General Division found that the Appellant’s conduct was not deliberate or intentional and that her testimony was credible. However, it still concluded that her conduct was willful in light of the definition of “willful” in Mishibinijima v. Canada (Attorney General), 2007 FCA 36.

[10] In the circumstances, the Appeal Division concluded that leave to appeal had to be granted to determine whether the General Division erred in law in rendering its decision.

Position of the parties

[11] The Appellant submits that the General Division concluded that she did not deliberately violate the clean desk policy, but rather that it was a mistake. It found that the Appellant’s actions were not intentional. It also found that the Appellant was credible. Despite these findings, the General Division erroneously concluded from the evidence that the Appellant’s conduct was willful and that she had lost her employment because of her own misconduct. The General Division should have found that her mistake did not constitute misconduct.

[12] While the General Division did consider whether the Appellant’s actions constituted misconduct, the member did not identify what those actions were, nor did he consider whether the Appellant’s loss of employment resulted from that misconduct. Therefore, the General Division failed to consider all parts of the test required when determining misconduct.

[13] The Respondent agrees with the General Division’s finding that the Appellant had no intention to do wrong. However, she had been warned and given opportunities to correct a repeated pattern of negligence. Despite multiple warnings, the Appellant failed to rectify her working practices and continued to violate the employer’s clean desk policy. Therefore, her actions meet the definition of misconduct as they were willful or of such a careless or negligent nature that they appear to have been committed deliberately.

Did the General Division err when it concluded that the Appellant was dismissed because of her own misconduct pursuant to sections 29 and 30 of the Act?

[14] The Tribunal reiterates that the notion of misconduct does not imply that it is necessary that the breach of conduct be the result of a wrongful intent; it is sufficient that the misconduct be conscious, deliberate or intentional. The test for misconduct is whether the alleged act was willful or at least of such a careless or negligent nature that one could say that the employee willfully disregarded the effects his or her actions would have on job performance—Canada (Attorney General) v. Hastings, 2007 FCA 372 (CanLII); Tucker (A-381-85), Mishibinijima.

[15] 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" (Mishibinijima).

[16] The Tribunal is of the opinion that the General Division committed no error when it found, from the material brought before it, that the Appellant knew or ought to have known that her violation of the clean desk policy was a breach of her duty to the employer, such that dismissal was a real possibility.

[17] The Appellant had a history of repeating the same mistake, based on the number of written warnings she had received for violating the clean desk policy. Each warning emphasized the importance of the clean desk policy and noted that failure to follow the policy “would result in further disciplinary action up to and including termination.”

[18] The Appellant admitted that she was aware of the employer’s policy to the effect that all confidential information should be locked up at the end of a shift. She was previously given a written statement regarding the policy that she read and understood. She was also given several warnings for clean desk violations, including one only three months prior to her dismissal. She did not take action against the employer since she considered that the dismissal was valid, having failed to comply, by her own admission, with the company policy (GD3-5 to GD3-6).

[19] The Tribunal finds that failing to ensure that all confidential information is locked up at the end of a shift, given the extreme importance of this policy for the employer, reflects a recklessness and negligence that approaches wilfulness under the Act.

[20] Unfortunately for the Appellant, her actions constitute misconduct within the meaning of the Act. In acting as she did, the Appellant knew or ought to have known that the conduct was such as to impair the performance of her duties owed to the employer and that, as a result, dismissal was a real possibility.

[21] Her actions were, at least, of such a careless or negligent nature that one could say that she willfully disregarded the effect her actions would have on her job performance.

[22] After reviewing the evidence, the General Division decision and the arguments of the parties, 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 General Division decision is supported by the facts and complies with the law and the decided cases.

Conclusion

[23] The appeal is dismissed.