Employment Insurance (EI)

Decision and reasons

Decision

[1] The Tribunal dismisses the appeal.

Overview

[2] The Appellant, E. B. (Claimant), made an initial claim for Employment Insurance benefits. The Respondent, the Canada Employment Insurance Commission, informed him that he was not entitled to Employment Insurance benefits because he had lost his employment due to his misconduct. The Commission concluded that the Claimant’s unjustified lateness and absences were acts of misconduct under the Employment Insurance Act (EI Act). The Claimant requested a reconsideration of this decision, but the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the Tribunal’s General Division.

[3] The General Division concluded that the Claimant’s lateness constituted misconduct. It found that the lateness that had led to his dismissal was conscious, deliberate, or intentional and that this type of behaviour constituted misconduct under sections 29 and 30 of the EI Act.

[4] The Tribunal granted leave to appeal. The Claimant argues that the General Division erred in law in its interpretation of the notion of misconduct under the EI Act and by imposing a burden of proof on him that was too severe.

[5] The Claimant also argues that the General Division did not consider the evidence before it, specifically when it failed to considerhis health problem and found that his actions were careless and negligent to the point of being wilful.

[6] The Tribunal must determine whether the General Division erred in its interpretation of the notion of misconduct under the EI Act and whether 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.

[7] The Tribunal dismisses the Claimant’s appeal.

Issues

[8] Did the General Division err in law by not considering the Claimant’s health problem when it found that his actions were careless and negligent to the point of being wilful?

[9] Did the General Division err in law in its interpretation of the notion of misconduct under the EI Act?

Analysis

Appeal Division’s mandate

[10] The Federal Court of Appeal has established that the mandate of the Appeal Division is conferred to it by sections 55 to 69 of the Department of Employment and Social Development Act (DESDA).^{Footnote 1}

[11] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.

[12] As a result, unless the General Division failed to observe a principle of natural justice, erred in law, or 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.

Preliminary matters

[13] As noted during the appeal hearing, the Appeal Division considers only the evidence that was before the General Division when coming to its decision.

Issue 1: Did the General Division err in law by not considering the Claimant’s health problem when it found that his actions were careless and negligent to the point of being wilful?

[14] This ground of appeal is without merit.

[15] The Claimant argues that the General Division did not consider the evidence before it, specifically when it failed to consider his health problem and found that his actions were careless and negligent to the point of being wilful.

[16] Based on the General Division decision, the General Division did not dismiss the Claimant’s medical evidence. Instead, it found that his medical evidence was insufficient and did not support a finding that the Claimant was not aware of his actions.

[17] The Tribunal also notes that the events that lead to the Claimant’s dismissal occurred after he returned to work from sick leave. The insurer, Manulife, had deemed the Claimant able to return to work on a full-time basis, and the Claimant’s psychologist had encouraged him to do so.

[18] Moreover, by the Claimant’s own admission during the employer’s cross-examination before the General Division, the Claimant had difficulty being on time in spite of his health problem. He testified that he is the type of person who arrives late for everything in life, whether professional or private.

Issue 2: Did the General Division err in law in its interpretation of the notion of misconduct under the EI Act?

[19] This ground of appeal is without merit.

[20] 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. In other words, in order to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that it could be said that the employee wilfully disregarded the effects their actions would have on their performance.

[21] As the General Division highlighted, the burden of proof rests on the Commission and the employer to show, on a balance of probabilities, that the Claimant’s dismissal was the result of misconduct according to the EI Act.

[22] It is important to reiterate that the role of the General Division was not to determine whether the dismissal or disciplinary action was justified. Instead, it had to determine whether the Claimant’s actions constituted misconduct under the EI Act.

[23] The General Division concluded that the Claimant’s lateness constituted misconduct. It found that the lateness that had led to his dismissal was conscious, deliberate, or intentional and that this type of behaviour constituted misconduct under sections 29 and 30 of the EI Act.

[24] The evidence shows that on November 15, 2016, after the Claimant returned from several months of sick leave, the employer gave the Claimant a final written notice indicating that any further unjustified lateness or absence would lead to dismissal.

[25] On February 15, 2017, the employer gave a termination letter to the Claimant with an attached list of unexcused late arrivals and absences reported since November 16, 2016.

[26] In an interview with a representative for the Commission on April 4, 2017, the Claimant admitted that possibly three incidents in three months could be considered unjustified.

[27] In a second interview the Commission carried out on May 23, 2017, the Claimant stated that he was aware that his employer would no longer tolerate the lateness and that any future breach would lead to his dismissal. He then admitted that he had been late five times since the November 15, 2016, warning letter.

[28] A series of emails the Claimant sent the employer shows late arrivals on November 15, December 9, and December 14, 2016, as well as January 12, January 26, and February 6, 2017. The last late arrival was on February 7, 2017.

[29] Case law has established that being absent from work without letting the employer know constitutes misconduct. Being absent from work without notifying the employer or without giving them valid reasons suggests wilful or wanton disregard for the employer’s interests and for the standards of behaviour that the employer has a right to expect of an employee.

[30] For the Tribunal, it is clear that the Commission and the employer have met the burden of proving the Claimant’s misconduct. The evidence established on a balance of probabilities shows that the employer dismissed the Claimant as a result of the Claimant’s numerous unjustified late arrivals and absences after he returned from sick leave and after he received the November 15, 2016, notice.

[31] The evidence clearly shows that the Claimant was not dismissed because he was going through personal difficulties, the employer having made many attempts to help the Claimant rectify the matter. This is not a matter of incompetence either because the Claimant was successfully doing the work for the position he had held since 2014.

Conclusion

[32] The Tribunal therefore finds that the General Division considered the Claimant’s arguments, that the General Division decision rests on the evidence submitted before it, and that this decision complies with the legislation and case law.

[33] For the reasons mentioned above, the appeal must be dismissed.