Employment Insurance (EI)

Decision and Reasons

Decision

[1] The Tribunal dismisses the appeal.

Overview

[2] The Appellant, G. L. (Claimant), made an initial claim for Employment Insurance benefits. The Respondent, the Canada Employment Insurance Commission (Commission), informed him that he was not entitled to Employment Insurance benefits because he had lost his employment due to his misconduct. The Commission determined that the Claimant had slept while he was working the night shift at a youth centre. The Claimant requested a reconsideration of that decision, but the Commission upheld its initial decision. The Claimant appealed the reconsideration decision to the Tribunal’s General Division.

[3] The General Division determined that the Claimant was dismissed for sleeping on the job and lying to his employer. It determined that, in acting as he did, the Claimant could foresee that that breach would result in his dismissal. The General Division found that the Claimant had lost his employment because of his misconduct.

[4] The Claimant was granted leave to appeal. He argues that the General Division erred in law and 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.

[5] The Tribunal must decide whether the General Division erred in its interpretation of the concept of misconduct under the Employment Insurance Act (EI Act), overlooked some of the evidence, and erred in its assessment of the Claimant’s credibility.

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

Issues

[7] Did the General Division fail to observe a principle of natural justice by giving more weight to the employer’s evidence even though it did not attend the hearing and could not be cross-examined?

[8] Did the General Division err by overlooking some of the evidence and err in its interpretation of the concept of misconduct under the EI Act?

[9] Did the General Division err in its assessment of the Claimant’s credibility?

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.^{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] Therefore, 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.

Issue 1: Did the General Division fail to observe a principle of natural justice by giving more weight to the employer’s evidence even though it did not attend the hearing and could not be cross-examined?

[13] The Tribunal finds that this ground of appeal is without merit.

[14] The Claimant criticizes the General Division for giving more weight to the employer’s evidence even though it did not attend the hearing and could not be cross‑examined. He argues that the General Division should have preferred his direct testimony.

[15] The Tribunal is of the opinion that the mere fact that one party attends and the other party does not attend the hearing must not be a determining factor. The General Division is free to find one party more credible than the other.

[16] Furthermore, the Federal Court of Appeal has decided that boards of referees (now the General Division) are not bound by the strict rules of evidence applicable in criminal or civil courts and that they may receive and accept hearsay evidence.^{Footnote 2} The General Division could not therefore reject the employer’s evidence simply because the Claimant did not have the opportunity to cross-examine the employer.^{Footnote 3}

[17] The Tribunal is of the opinion that the Claimant was aware of the evidence on file before his appearance before the General Division and that he had plenty of time to prepare his arguments. The General Division allowed him to present his arguments about the entire case before it, and the Claimant had an opportunity to contradict the employer’s position. There was no breach of natural justice.

[18] This ground of appeal fails.

Issue 2: Did the General Division err by overlooking some of the evidence and err in its interpretation of the concept of misconduct under the EI Act?

[19] The Tribunal finds that this ground of appeal is without merit.

[20] The General Division’s role is to determine whether the employee’s conduct amounts to misconduct within the meaning of the EI Act and not whether the severity of the penalty imposed by the employer is justified or whether the employee’s actions are a valid ground for dismissal.^{Footnote 4}

[21] In addition, the concept of misconduct does not necessarily imply that the wrongful behaviour was a result of wrongful intent; it must simply be conscious, deliberate, or intentional. In other words, to constitute misconduct, the alleged act 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.^{Footnote 5}

[22] In support of his application for leave to appeal, the Claimant argues that the General Division erred in law in its interpretation of the concept of misconduct, as defined by the Federal Court of Appeal. He notes that there is nothing in the evidence to support the fact that the Claimant fell asleep on purpose. The Claimant argues that the mere occurrence of a fact, that of having slept, does not exclude that the Commission must prove the mental element, which it did not do. He submits that proof of a mental element is essential for a finding of misconduct.

[23] The Claimant also argues that the General Division ignored the evidence of the damaged state of the chair he was sitting on to find that he had reclined in order to sleep. He also submits that the General Division ignored his testimony that he did not expect to be dismissed.

[24] After analyzing all of the evidence, the General Division determined that the Claimant had been dismissed because he fell asleep while he was on duty on January 26, 2019. It considered that the Claimant had been unknowingly photographed by a co‑worker while he was sleeping instead of watching over vulnerable clientele. The General Division determined that other co-workers and users said they had noticed that the Claimant was sleeping at work rather than watching over the users.

[25] The General Division found that the Claimant’s version of events—that he was not sleeping—lacked credibility because he seemed to be playing with words during his testimony ([translation] “doze off,” [translation] “nod off,” drift off, close his eyes, have heavy eyes, feel drowsy, etc.). On the one hand, he argued that he was [translation] “nodding off” to then compare his situation to a driver who accidentally falls asleep at the wheel. On the other hand, he said he had personal problems and insomnia during the day, which made him very tired during his night shifts, suggesting that he could have fallen asleep, while continuing to categorically deny ever having slept at work.

[26] The General Division found that the Claimant’s credibility was also undermined by the fact that he continued to deny having slept. However, he did not realize he had been photographed and that his co-workers had made noise in an attempt to wake him. The General Division found that the state of the chair did not contradict the overwhelming evidence showing that the Claimant was asleep when the photo was taken.

[27] The General Division considered that the Claimant was responsible for the safety of a group of minor children with diverse needs and issues. In this context, it found that as an intervention officer at a youth centre, the Claimant knew or should have known that sleeping during his shift would impair the performance of the duties owed to his employer and that it would be likely to result in his dismissal.

[28] It is clear to the Tribunal that the alleged act was wilful or at least of such a careless or negligent nature that one could say the Claimant willfully disregarded the effects his actions would have on job performance. Furthermore, the Claimant could foresee that his actions were likely to lead to his dismissal because his behaviour was in direct contradiction with the very nature of the youth centre’s operations and his duties as an intervention officer.

[29] The Tribunal is of the opinion that it would have been significantly better for the Claimant to refuse the shift if he was not, at that specific moment, in a state to do it adequately. Working the night shift, as he did, implied that he had to be willing to work at all times. Considering that his job was to watch over and provide care for a vulnerable clientele, he should have had all of his faculties about him when he arrived at work. Unfortunately, this was not the case.

[30] The Tribunal finds that the General Division’s decision was made based on the evidence before it, and this was a reasonable decision that complies with both legislation and case law regarding misconduct.

[31] There is nothing to warrant the Tribunal’s intervention.

Issue 3: Did the General Division err in its assessment of the Claimant’s credibility?

[32] This ground of appeal is without merit.

[33] For quite some time, the case law has consistently stated that unless there are obvious particular circumstances, the issue of credibility must be left to the discretion of the General Division, which is better able to decide on it.

[34] The Tribunal will intervene only if it becomes obvious that the General Division’s findings on this matter do not take into account the evidence before it.

[35] The Tribunal does not find any reason to intervene here on the issue of the Claimant’s credibility, as assessed by the General Division.

Conclusion

[36] For the reasons stated above, the Tribunal dismisses the appeal.