Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Appellant lost her employment due to her own misconduct. As a result, she is disqualified from receipt of employment insurance benefits (EI benefits).

Overview

[2] The Appellant applied for regular EI benefits and established a claim effective May 5, 2019. The Commission investigated the reason for the Appellant’s separation from employment and determined she was dismissed from her job as an Early Childhood Education worker (ECE) at X because she failed to follow the employer’s protocol for a serious occurrence when a child under her care went missing. The Commission imposed a disqualification on her claim because she lost her job due to her own misconduct. The Appellant disputed the Commission’s decision, arguing that the policy required her to look for the child until she gave up and only then was she to call her manager and the police. The employer advised that a missing child is a considered a “serious occurrence” and that the employer has a strict policy setting out the procedures that must be followed in the event of a serious occurrence. The policy for such incidents required the Appellant to call 911 and alert management as soon as the child went missing. Instead, the Appellant searched the premises and then left the daycare centre, picked up her car and drove to the child’s home, which was where she eventually found him. Only after she had located the child did she alert management that a serious occurrence had happened. The Commission maintained the disqualification, and the Appellant appealed to the Social Security Tribunal (Tribunal).

Issue

[3] Is the Appellant disqualified from receipt of EI benefits because she lost her job due to contact that constitutes misconduct for purposes of the Employment Insurance Act (EI Act)?

Analysis

[4] The Appellant will be disqualified from receiving EI benefits if she lost her employment due to her own misconduct: section 30 EI Act.

[5] The onus is on the Commission, with evidence obtained from the employer, to prove that the Appellant, on a balance of probabilities, lost her employment due to her own misconduct (Larivee A-473-06, Falardeau A-396-85).

[6] The term “misconduct” is not defined in the EI Act. Rather, its meaning for purposes of the EI Act has been established by jurisprudence from courts and administrative bodies that have considered section 30 of the EI Act and laid out guiding principles to be considered in the circumstances of each case.

[7] In order to prove misconduct, it must be shown that the Appellant behaved in a way other than she should have and that she did so willfully, deliberately, or so recklessly as to approach willfulness: Eden A-402-96. For an act to be characterized as misconduct, it must be demonstrated that the Appellant knew or ought to have known that her conduct was such as to impair the performance of the duties owed to the employer and that, as a result, dismissal was a real possibility: Canada (AG) v. Lemire, 2010 FCA 314, Mishibinijima v. Canada (AG), 2007 FCA 36; and that the conduct will affect the Appellant’s job performance, or will be detrimental to the interests of the employer or will harm, irreparably, the employer-employee relationship: CUB 73528.

Issue 1: What is the conduct that caused the Appellant to lose her job?

[8] The first step in the analysis is for the Tribunal to determine why the Appellant lost her employment at The Learning Enrichment Foundation.

[9] The evidence obtained from the employer is as follows:

1. the employer’s statements to the Commission (at GD3-25) that:
   • The Appellant was dismissed because she failed to follow the employer’s protocol during a serious occurrence.
   • A child went missing while under the Appellant’s care. The Appellant failed to immediately communicate the incident to her supervisor or police, as was the protocol for a serious occurrence such as this. The child was located at his home approximately 40 minutes after he went missing. The Appellant only notified her supervisor after the incident had been resolved.
   • When a child goes missing, staff are expected to do a preliminary check at the facility. If the child is not found right away, the supervisor/manager and the police are to be notified immediately.
   • It is the job of the police to look for a missing child outside of the daycare, and not the job of the employee.
   • The Appellant told the employer that she and the other employee didn’t follow protocol because they were looking for the child. But it was the job of the police to go to the child’s home in an attempt to locate the child, not the Appellant’s.
   • The Appellant’s failure to follow the employer’s protocol could have led to serious consequences.
2. the employer’s Serious Occurrence Policy & Delivery Procedure (GD3-36 to GD3-39); and
3. the April 22, 2019 Incident Report (GD3-40 to GD3-41).

[10] On her application for EI benefits, the Appellant indicated she was aware of the employer’s procedures if a child is missing, which she listed as: check the area, ask if anyone saw the child, call the parent, call 911 and call the supervisor or manager in the program (GD3-11). The Appellant stated she followed the policy but the employer said she took a long time to call her supervisor, which she explained was due to being on the road and driving (GD3-12).

[11] The Appellant told the Commission (at GD3-26, GD3-31 to GD3-32, GD3-33, GD3-42 and GD2-2 to GD2-3) that:

1. When a child goes missing, employees are expected to immediately look for the child, notify their supervisor/manager and call the police.
2. On April 22, 2019, a 10 year-old child went missing while the Appellant and another employee were on duty.
3. She and the other employee immediately searched inside the premises and outside in the daycare’s playground area. They did not find him. As per the next step of the policy, they tried to call the child’s mother, but the line was busy.
4. She didn’t notify her supervisor/manager or the police because she was looking for the child
5. When they were unable to locate the child in the immediate area, she left the daycare building, picked up her and drove her car along the route to the child’s home, hoping to find him along the way.
6. She did not instruct the other ECE on duty at the time to call their supervisor/manager or the police. Rather, she asked the employee to call the child’s mother.
7. She herself wasn’t able to call her supervisor or the police because she was driving her car.
8. Her foremost priority was to find the child. She made her best effort and went “an extra mile” to find the child (GD3-31). She eventually found the child at home with his mother.
9. She called the other employee and informed her the child had been found safe and with his mother.
10. She then returned to the daycare.
11. She notified her supervisor/manager about the incident after she returned to the daycare.
12. She has never been instructed to leave the building to look for a missing child.
13. She left the building in this case because there were no other children at the daycare centre at the time.
14. She believes the child took advantage of the situation and snuck out behind her back.
15. The employer’s policy required her to look in the area for the child before contacting the supervisor or the police; and that if she had given up looking for the child – then she was to call her supervisor and the police. But with her swift action and continuous searching, the child was found safely with his mother.
16. She has an exceptional 14-year service record and believes her dismissal was “unjustified and wrongful” (GD3-32).

[12] The Appellant testified at the hearing as follows:

• As soon as she realized the child was missing, she instituted the policy by looking for him “in our area”. 
• She didn’t “waste” her time.
• She left the premises and searched for the child in her car because there were no other children in the daycare that day. 
• She never gave up looking for the child until she found him.
• She doesn’t understand why she should have called the police when she found the child safe at home.
• She also doesn’t understand why the child’s mother never bothered to call the daycare to alert them to the fact that child had come home. 
• She reported the incident to her supervisor when she returned to the daycare after she located the child at home.
• The supervisor’s “first question” to her was:  “Did you call 911?”. 
• She had not called 911.  She doesn’t understand why - if I child is safe, she would have to call the police?
• Her supervisor could have told her at that point to call the police, but no such instructions were given. 
• This was her first such incident in 14 years of work experience.  It was an extremely stressful situation and she did her best in the circumstances. 
• The employer’s policy is unclear and should be clarified to allow a 5 minute maximum time to look for the child and then call 911. 
• She worked for X for 5 years and gave her “best results”.  She should only have been given a verbal warning for this incident.  The next step would have been a written warning.  But the employer gave her no warnings or notice she was going to be terminated for finding a missing child.

[13] The Appellant submitted that she followed the policy by first looking for the child “in the area”. In her mind, the “area” included leaving the daycare’s premises, going to pick up her car, driving along the route between the daycare and the child’s home, and searching for him at his home on the 6^th floor of a nearby apartment building. When she located the child safely at home with his mother, there was no need to call the police. She returned to the daycare and then reported the incident and resolution to her supervisor.

[14] The Tribunal does not agree that the Appellant followed the employer’s policy and procedures for the serious occurrence missing-child incident on April 22, 2019.

[15] The policy clearly sets out an unqualified obligation on employees to call 911 and to notify a supervisor when a child goes missing. It does not say an employee is to take matters into their own hands, leave the premises and search off-site for the missing child before alerting emergency services and management. The Appellant’s election to do so was a breach of the employer’s serious occurrence policy and procedures.

[16] The Tribunal therefore finds that the Appellant was dismissed from her job at X because she failed to follow the employer’s policy and procedures for a serious occurrence when a child in her care went missing on April 22, 2019.

Issue 2: Does this conduct constitute “misconduct” for purposes of the EI Act?

[17] The employer’s conduct is not the issue in this appeal. The Federal Court of Appeal has definitively held that the Tribunal’s role is not to determine whether a dismissal was justified or the appropriate sanction, nor whether dismissal is too severe of a penalty in the circumstances: Caul 2006 FCA 251, Secours A-352-94, Namaro A-834-82. If the Appellant believes she was wrongfully dismissed from her job at X, she is free to pursue whatever remedies she may have in connection with the actions taken by the employer.

[18] Rather, having found that the Appellant lost her job because she failed to follow the employer’s serious occurrence protocol in the incident on April 22, 2019, the Tribunal must now determine if this conduct is misconduct for purposes of the EI Act (McNamara 2007 FCA 107; Fleming 2006 FCA 16).

[19] The Tribunal finds that it does constitute misconduct.

[20] The Tribunal accepts the Appellant’s testimony that she was focused solely on finding the missing child and did the best she could in a very stressful situation. But the Tribunal also accepts the employer’s evidence that it was not for the Appellant to take matters into her own hands and conduct an off-site search for the child. The Tribunal agrees with the employer’s statement that the Appellant’s failure to follow its serious occurrence protocol could have led to serious consequences. While the child was ultimately found safe at home, it is easy to see how things could have turned out quite differently. This is the very reason employers such as X have a serious occurrence policy in place and why the first step of such policies (after applying first aid, if neededy) is to call 911. It was open to the Appellant to call 911 and her manager as soon as she realized the child was not in the building or the playground. She did not do so. By choosing instead to leave the premises and conduct her own off-site search, the Appellant delayed the timely mobilization of a 911 emergency response which could have prevented a tragic outcome had the child not been heading to his home – as the Appellant guessed – or not made it there safely. The Tribunal finds this course of action to be so reckless as to be wilful.

[21] The Appellant argues against a finding of misconduct on the basis that it was her efforts that ultimately led to this mischievous child being found safe at his home; and, at worst, she should have received a verbal warning for failing to follow protocol for this incident. While the Tribunal agrees that the chain of events which led to the Appellant losing her job was set off by a mischievous child, the Tribunal cannot ignore the significant safety risks associated with the Appellant’s breach of the employer’s serious occurrence policy. The Appellant – and everyone involved – is fortunate the incident on April 22, 2019 was resolved without any harm coming to the child. But it was nonetheless incumbent on her to follow the employer’s protocol at all times. She was reckless in her failure to do so, especially in her decision to take matters into her own hands and conduct an off-site search without calling 911 or management. This was a breach of the duty of care she owed her employer and irreparably harmed their relationship. For these reasons, the Appellant ought to have known that her conduct could lead to her dismissal.

[22] The Tribunal finds that the Appellant’s conduct in failing to follow the employer’s policy and procedures for a serious occurrence when a child in her care went missing on April 22, 2019 was so reckless as to be willful. The Tribunal further finds that these actions irreparably harmed her employment relationship with X, and that the Appellant ought to have known she could lose her job for this conduct. The Tribunal therefore finds the Appellant’s conduct to be misconduct within the meaning of section 30 of the EI Act. As a result, she is disqualified from receipt of EI benefits pursuant to section 30 of the EI Act.

Conclusion

[23] The Tribunal finds the Appellant lost her employment at X due to her own misconduct. The Appellant is, therefore, disqualified from receipt of EI benefits as of April 28, 2019 pursuant to section 30 of the EI Act.

[24] The appeal is dismissed.