Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal finds that the claimant’s conduct does not constitute misconduct.

Overview

[2] The Appellant (the “employer”) dismissed the claimant (added party in this case) from her position as a nurse, claiming that she was bullying staff and a resident. When the claimant applied for benefits the Respondent (the “Commission”) determined that she had lost her employment by reason of her own misconduct and imposed a disqualification. The claimant made a request for reconsideration. Following this request, the Commission determined that the reasons for the claimant’s dismissal did not constitute misconduct with the meaning of the Act and rescinded its initial decision. The Appellant appeals this decision arguing that it was indeed misconduct that led to the claimant’s dismissal as she had a history of workplace bullying, had received many warnings and was told that her conduct could result in termination.

Preliminary matters

[3] The appeal was initially scheduled to be heard by videoconference. After the Notice of Hearing had been sent, the Appellant informed the Tribunal that it would be bringing four additional witnesses and the claimant appointed a representative. Given the number of participants, the form of hearing was changed and the matter proceeded to be heard in person.

Issue(s)

[4] The Tribunal must determine:

1. Why did the claimant lose her employment?
2. Did the claimant commit the conduct which led to her dismissal?
3. If so, does that conduct constitute misconduct within the meaning of the Employment Insurance Act (Act)?

Analysis

[5] The relevant legislative provisions are reproduced in the Annex to this decision.

[6] A claimant is disqualified from receiving any benefits if the she lost her employment by reason of her own misconduct (sections 29 and 30 of the Act). The test for misconduct is whether the act complained of was willful, or at least of such a careless or negligent nature that one could say that the employee willfully disregarded the effects of her actions on her job performance. Misconduct is not defined in the Act (Canada (A.G.) v. Tucker, A-381-85).

[7] The onus of proof is on the Commission or the employer to prove, on a balance of probabilities, that the claimant lost her employment by reason of her own misconduct (Lepretre v. Canada (Attorney General) 2011 FCA 30). The Tribunal must be satisfied, after weighing all the evidence, that the misconduct was the reason for the claimant’s dismissal and not an excuse for it (Minister of Employment and Immigration v. Bartone, A-369-88).

Issue 1: Why did the claimant lose her employment?

[8] The Tribunal finds that the claimant lost her employment because of bullying behaviour in the workplace. The Appellant called four witnesses to testify to the behaviour of the claimant in the workplace. These witnesses all corroborated the evidence of the Appellant with respect to the behaviour that led to the dismissal.

[9] H. H., the owner and manager of the Appellant, testified that she did not want to dismiss the claimant. She stated that the claimant was a good nurse and it was difficult in their industry and location to replace her. However, she stated that she could no longer keep her employed given the reports of her behaviour toward other employees and at least one resident. H. H. told the Tribunal that there had been a previous incident in early 2016 during which the claimant was told that her employment was terminated and she was given a working notice of a couple of months. She stated that the claimant contacted her after a few weeks and asked for another chance as she was having difficulty finding other employment. She testified that she agreed to allow the claimant to stay but informed her that any further incidents would result in her termination. The Appellant also relied on evidence from J. H., her son and business partner. His testimony generally corroborated the evidence of H. H. However, he was not present for any of the incidents and spoke only of the conversations he had with H. H. afterwards.

[10] Evidence was also provided from P. E., a dietary aide with the Appellant. She had been involved in the incident in 2016 which, according to the Appellant, resulted in a working notice being given to the claimant. She stated that she was fearful of the claimant, that she would get ignored and told to “go away” and to just do her job. She stated that the claimant treated her differently from other employees and that it made her feel horrible. She described an incident in December 2016 when the claimant told her that she was going to write her up for carrying coffee pots the wrong way. The claimant told her to “go away” when she denied that she was doing anything wrong. She spoke to H. H. regarding the treatment she received from the claimant.

[11] On the day that the claimant was terminated, H. H. stated that she received a call at home, asking her to come into the workplace as there had been an issue between the claimant and another employee, L. G.. When she arrived at the workplace, she found L. G. in distress, extremely upset over the way that the claimant had treated her. H. H. spoke with L. G., with a resident and with the claimant and determined that the claimant had mistreated L. G.. She was also informed by L. G. and the resident at this time that the claimant had treated the resident in a manner L. G. considered inappropriate. H. H. advised the Tribunal that she spoke with the claimant about the incident. She told the claimant to get her things and go home. She testified that she advised the claimant by email afterward that she was terminated.

[12] L. G. also testified at the hearing. L. G. is a personal service worker (“PSW”), employed by the Appellant. She described her interactions with the claimant over a two year period of working together. She stated that she felt mistreated from “day one” by the claimant, feeling that she bullied, degraded and ignored her and questioned her abilities. L. G. also testified to two incidents with a resident in which she felt the claimant mistreated the resident. On one occasion, the resident had fallen trying to get to the bathroom in his room. L. G. stated that the claimant handled the incident poorly and spoke to the resident disrespectfully. On the other occasion, the same resident asked to be brought to the area where he was to be weighed and have his bloodwork done. L. G. stated that the claimant spoke to both her and the resident rudely when they arrived and that the resident felt that the claimant “hated him.”

[13] On the day of the dismissal, L. G. stated that she saw the claimant’s car in the parking lot and became nervous. She stated that she went inside and that she said hello to the claimant and asked for a “pre-shift”, which is when the nurse in charge is to provide relevant information as to the current situation at the workplace to the PSW. She stated that the claimant ignored her and told her to go read the notes rather than pre-shifting her. The witnesses testified that the claimant regularly refused to pre-shift her despite it being required and other PSWs receiving the proper treatment. L. G. addressed the claimant about her behaviour and the way she was treated. According to L. G., the claimant told her to get out and that she didn’t like her. L. G. described her own reaction to the treatment from the claimant as a “breakdown.”

[14] L. G. stated that she walked away and broke down. She went to the spa room at the facility to try to gather herself. The receptionist contacted H. H.. She stated that another employee, P. L., stayed with her and eventually H. H. arrived. She reported to H. H. what had happened. She was later told that the claimant was gone. She was asked by H. H. to write down what had happened. This hand written statement was attached to the Notice of Appeal.

[15] Both P. E. and L. G. referenced significant non-verbal behaviour by the claimant which they viewed as bullying, including ignoring, eye-rolling, putting up her hand when they tried to speak to her and being told to “go away.” They both stated they were fearful an anxious when working shifts in which the claimant was the nurse on duty.

[16] P. L., a part-time nurse and director of nursing employed by the Appellant also testified. She stated that she worked with the claimant and felt intimidated when she first started. She stated that the claimant’s attitude made her unapproachable. She was working in administration on the day of the claimant’s dismissal. She came in to work at 9:00am and reported to the charge nurse, the claimant. The claimant told her that there had been an incident between her and L. G.. P. L. stated that she went to the spa room and that L. G. was there and very upset. H. H. was speaking to her. P. L. also spoke of the issues with the resident referenced in the other witnesses testimony and stated that he had had a lot of interactions with the claimant that were “not nice”. She also testified that she was aware of other complaints involving the claimant, including the earlier incident with P. E..

[17] The Tribunal finds, based on the testimony of the Appellant and the employee witnesses, that the claimant was dismissed due to perceived repeated acts of bullying and intimidation in the workplace. The Appellant believed that the claimant was given a warning and that the reported bullying incident on May 17, 2018, was the claimant’s last chance, resulting in her termination.

Issue 2: Did the claimant commit the alleged conduct?

[18] Yes, the Tribunal finds that the claimant did engage in bullying behaviour in the workplace. The evidence of the Appellant was corroborated by the three employee witnesses who all observed the claimant engaging in the behaviour that resulted in her termination.

[19] The claimant also provided evidence at the hearing. She denied the claims of the Appellant’s witnesses. She stated that the Appellant did not give her a final warning after the incident with P. E.. She denied claims by the Appellant that she had been sent on workplace training. She also denied that she ever told the Appellant that she was looking for other work or that she asked the Appellant to give her one more chance.

[20] On the date of the incident resulting in her dismissal, the claimant testified that she was the nurse on duty. She had been working since 6:30am when L. G. arrived. She stated that she said good morning to L. G. in an inappropriate way but that she was bending over the medication cart and not able to look up. The claimant stated that L. G. initiated the confrontation, telling her that she was unprofessional and didn’t know how to do her job. She described it as “just a confrontation” stating that L. G. was emotional, angry and upset and that she, herself, was a little upset. She stated that H. H. came and spoke to her, telling her to get her things and go home. She denied that H. H. told her not to come back or that she was dismissed. She dropped off a phone and a note the following Monday. She stated that she followed up with an email on May 25th and received a response from H. H. on the 26th with her ROE attached. She stated that this was when she first learned of her termination.

[21] With respect to her interactions with the resident referenced in the other employee’s testimony, she denied having a negative relationship with him. She stated that he was a direct individual and would have reported to her if there had been a problem with her behaviour toward him.

[22] The corroborated evidence of the Appellant was that the other employees and at least one resident had complained of the claimant’s behaviour. The three employee witnesses all testified that they had experienced bullying and intimidation from the claimant, generally through non-verbal actions such as eye-rolling, ignoring and dismissive behaviour.

[23] While the claimant denies that her behaviour was problematic, the evidence predominantly contradicts this. The Appellant and three witnesses described a pattern of behaviour. With respect to the incident on the day of the dismissal, the claimant stated that L. G. initiated the confrontation and denies that she acted inappropriately. The Tribunal finds, on the balance of probabilities, given the corroborating evidence of the witnesses, that it is more likely than not that the claimant engaged in bullying toward L. G.. Similarly, the testimony of the Appellant and the witnesses supports a finding that the claimant had engaged in such conduct on previous occasions. The Tribunal finds that the claimant committed the alleged conduct.

Issue 3: Does the claimant’s conduct constitute misconduct within the meaning of the Act?

[24] The behaviour of the claimant will constitute misconduct where it was wilful, meaning that the acts were conscious, deliberate or intentional. Misconduct is not defined in the Act. The Federal Court of Appeal has explained the legal notion of misconduct for the purposes of the Act. There will be misconduct where the claimant knew, or ought to have known, that her conduct was such as to impair the performance of her duties and, as a result, dismissal was a real possibility (Canada (Attorney General) v. Lemier, 2010 FCA 314). The Appellant is required to prove, on a balance of probabilities that the claimant knew or ought to have known that dismissal was a real possibility as a result of her behaviour (Mishibinijima v. Canada (Attorney General), 2007 FCA 36.

[25] The Tribunal finds that the claimant’s conduct does not constitute misconduct within the meaning of the Act because the claimant did not know that dismissal was a real possibility. While the evidence of the witnesses relied on by the Appellant corroborates their experience of the Appellant’s behaviour, it does not speak to the conversations or interactions between the Appellant and the claimant with respect to the prior warnings given to the claimant. The testimony supports a conclusion that the behaviour occurred. However, the evidence as to the warnings or conversations between the Appellant and claimant is lacking.

[26] H. H. testified that she spoke to the claimant following the incidents with P. E. in 2016. She stated that the claimant was told in 2016 that any further incidents would result in her termination. She stated that the claimant was then given working notice following the incident with P. E. in December 2016. The working notice was to be for a number of months. H. H. stated that the claimant asked her for one more chance and that she agreed but told the claimant that any further incidents would result in immediate termination. The Appellant kept notes of conversations with the claimant.

[27] The role of the Tribunal is not to determine whether the dismissal was justified or the appropriate sanction (Canada (AG) v. Caul, 2006 FCA 251). The claimant testified that she was not aware that dismissal was a possibility in her circumstances. The Appellant produced notes that she had taken of previous conversations with the claimant. There is nothing signed by the claimant, or any letters or notices addressed to the claimant, indicating that her employment was in jeopardy or that her behaviour was problematic. The documentary evidence and testimony indicate that the claimant had not been spoken to by the Appellant about her behaviour for approximately a year and a half before the day of dismissal.

[28] Given the lack of evidence to corroborate the claim that the claimant was made aware of the possibility of dismissal, coupled with the claimant’s denial of such warnings, the Tribunal finds, on a balance of probabilities, that the claimant did not know, nor ought she to have known, that dismissal was a real possibility in her case.

[29] The Tribunal finds that the claimant’s conduct did not constitute misconduct within the meaning of the Act.

Conclusion

[30] The appeal is dismissed.