Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Claimant is disqualified from receiving benefits because he lost his employment because of his own misconduct.

Overview

[2] The Claimant worked for a travel agency. His employer dismissed him from his job and he applied for Employment Insurance (EI) benefits. The Commission accepted his claim and began to pay him benefits. When the Employer was told the Claimant was being paid benefits, they asked the Commission to reconsider this decision. After speaking again with the Employer, the Commission determined that the Claimant had been dismissed for fraud. Since he had been dismissed for misconduct, the Commission disqualified the Claimant from receiving benefits and required him to repay the benefits he had already been paid.

[3] The Claimant is appealing this decision, saying that the Employer never gave him any proof or discussed the issue with him. He also argues that the Commission accepted the Employer’s version without allowing him the chance to respond. Finally, he explains that he does not have the money to pay back the EI benefits that have been paid to him.

Preliminary matters

[4] The reconsideration decision being contested was done by the Commission because the Employer asked that the decision to grant benefits be reconsidered. As it was possible this decision could be changed, I felt the Employer had a direct interest in this matter and added them as a party of my own initiative.Prior to the hearing, the Employer advised the Tribunal that they would not participate in the hearing as they intended to go to court with the Claimant. The hearing therefore proceeded in their absence.

Issues

[5] Did the Claimant lose his job because of misconduct? To determine this, I will first have to decide the reason why the Claimant lost his job. Then I need to decide if the Commission and the Employer have proven that the Claimant did the actions he was fired for. If he did, then I need to decide if the acts were misconduct under the law.

Analysis

Why did the Claimant lose his job?

[6] The Claimant lost his job because his Employer accused him of internal fraud and theft.

[7] The Claimant testified that he initially did not know why he was being dismissed and that once he received the letter of dismissal from his Employer, he saw that they were accusing him of fraud.

[8] The letter of dismissal dated October 23, 2019 says that the Employer had conducted an internal investigation and determined that there had been gross misconduct by the Claimant. The Claimant’s termination was effective immediately.

[9] The Employer confirmed to the Commission that the Claimant was dismissed because an internal investigation had been conducted following a request from a customer who had found irregularities in their travel tracking system. The Employer says that this investigation discovered that the Claimant had used a customer’s travel credits to book a personal trip for himself and his girlfriend. While they also allege they have uncovered other fraud as well, the use of the customer’s credits was what lead to the dismissal.

Did the Claimant engage in the conduct that lead to his dismissal?

[10] The onus is on the Employer and the Commission to prove that the Claimant lost his employment because of his own misconduct. To do this, I must be convinced, that it is more likely than not that the Claimant engaged in the fraud that the Employer and Commission are alleging.

[11] Before determining if the Commission and Employer have met their burden, it is important to be clear about which actions of the Claimant are in question. The Commission and Employer have alleged that the Claimant took travel credits belonging to a customer to purchase a flight to Punta Cana and then had that ticket transferred to his own name. While there is some question about whether the Claimant actually went to Punta Cana, I find that it does not matter whether he went on the trip or not, as the action that lead to his dismissal was the purchase of a ticket using the customer’s credit.

[12] The Commission argues that the Employer gave a detailed account of the incident and although the Claimant was given several opportunities to discuss the situation, he failed to act on them. They also submit that the Claimant does not provide any forceful arguments that he did not in fact perpetrate the actions he is accused of. They note that his main argument is that he cannot afford to repay the benefits already paid to him.

[13] The Claimant argues that the plane ticket in question was bought on his own credit card and he did not commit any fraud. He was willing to come and talk to his Employer about the situation immediately, but they kept putting it off, so they did not hear his explanations before dismissing him.

[14] The Commission has provided notes of several conversations with the Employer. The Employer explains that they had been contacted by an important customer who had notice an irregularity in their own tracking of their company travel expenses. This tracking showed that an employee of the customer who had no plans or reason to travel to Punta Cana had a ticket booked in their name for the weekend. The Employer conducted an internal investigation and they say that the investigations showed that the Claimant had booked a ticket to Punta Cana using the customer’s travel credit then had called the airline to ask that the ticket be changed to his name. The customer would not have seen the name change because their system tracked only ticket numbers. They also note that the Claimant had taken time off that coincided with the travel dates on the ticket and that the airline confirmed that the ticket and the Claimant’s passport had been scanned at the airport.

[15] Although the Employer did not provide the Commission with any documentation in support of their claims against the Claimant, I find that their explanations of the situation are clear and detailed. The statement that the Claimant was dismissed for fraud was consistent throughout their discussions with the Commission and were confirmed by more than one representative of the Employer.

[16] After hearing the Claimant’s testimony, I find that although I was able to hear from him first hand, his version of events is less credible than the version that was given to the Commission by his Employer. The Claimant did provide explanations for the situations raised by the Employer, but they were not consistent with statements he had made previously.For example, while the Claimant said in his Notice of Appeal that the Employer had not discussed the situation with him at all, his application for benefits says that he disagreed with the Employer’s accusations, which means he would have known what the accusations were. Also, in the documents submitted by the Claimant after the hearing, I see text messages sent to the Employer dated before the Claimant was dismissed, specifically stating the Claimant would bring his passport to show there was no trip to the Dominican Republic. This demonstrates that before he was fired, the Claimant knew of the specific accusations against him.

[17] When asked about a ticket to Punta Cana being issued in his name, the Claimant first said that the ticket would have been a test booking. These bookings are often done when there is a change to airline rules and do not stay in the system for long, with no actual ticket being issued. When questioned about his Employer’s statement that the airline had confirmed the ticket and his passport had been scanned at the airport, the Claimant then changed to say that he had bought a ticket to Punta Cana himself. He said that the ticket was bought on a whim the night before, thinking that he would go away to relax for a day or two over the long weekend. The Claimant says he did go to the airport the morning of the flight and had his passport and ticket scanned at the gate, but that he changed his mind at the last minute and did not go on the trip.

[18] The text messages and receipts submitted by the Claimant do show that he was likely in Canada and not in Punta Cana when his employer called to speak with him. However, as mentioned above, it does not matter if the Claimant actually went to Punta Cana or not, because he was fired for using a client’s credits to buy a ticket for himself. Since the critical element of this case revolves around the purchase of an airline ticket to Punta Cana, I find the fact that the Claimant did not see fit to mention this aborted trip until he was confronted with the Employer’s statement that there was proof that a ticket had been scanned, to be damaging to his credibility.

[19] The Claimant also argues that he was not given a chance to discuss the case with the Commission before they reconsidered the original decision to give him benefits. The Commission’s documentation shows that they tried on several occasions, by phone and by email, to reach the Claimant to discuss the file. The notes show that the Claimant did not speak to the Commission because he was not comfortable giving personal information to identify himself. The Claimant may have had privacy concerns but it is not true that he was not given the chance to discuss these matters with the Commission before they reached their decision to disqualify him.

[20] In reaching this decision, I have also reviewed the medical notes submitted by the Claimant, demonstrating that the day he was fired his doctor put him on medical leave for stress and anxiety. I understand that the Claimant says that the time he took off was not to go on vacation, but because he was stressed and anxious because of his job. I do not find that this information helps to answer the question of whether the Claimant purchased a plane ticket with a customer’s credits. The Claimant was also not fired because of a medical condition, so I do not consider this information relevant in this matter.

[21] The Claimant was offered 5 days from the date of the hearing to provide me with additional proof of his version of the facts, in particular that he purchased the plane ticket with his own credit card. While I did receive documentation from the Claimant, this information does not show that he purchased the plane ticket with his own funds.

[22] I find that the Commission and the Employer have succeeding in proving on the balance of probabilities that it is more likely than not that the Claimant used the customer’s credit to purchase a ticket to Punta Cana for himself.

Is the reason for the Claimant’s dismissal misconduct under the law?

[23] The Claimant’s actions are considered misconduct under the law.

[24] To be misconduct under the law, the conduct has to be willful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 1} Misconduct also includes conduct that is so reckless that it approaches willfulness.^{Footnote 2}  The Claimant does not have to have a wrongful intent for his behavior to be misconduct under the law.^{Footnote 3} 

[25] There is misconduct if the Claimant knew or ought to have known that his conduct could impair the performance of the Claimant’s duties owed to his employer and, as a result, that dismissal was a real possibility.^{Footnote 4}

[26] The Commission has to prove that it is more likely than not^{Footnote 5} that the Claimant lost his job because of misconduct.^{Footnote 6} 

[27] The Commission says that that there was misconduct because the employer demonstrated that the Claimant had defrauded a client.

[28] The Claimant says that there was no misconduct because the Employer has not provided any proof that he used a customer’s credits to purchase a plane ticket for himself.

[29] I find that the Commission and Employer have proven on the balance of probabilities that there was misconduct. As mentioned above, I prefer the Employer’s explanation of events and their investigation over the Claimant’s testimony because it is more detailed and precise, whereas the Claimant’s version is inconsistent.

[30] Although the Employer has not provided any written policy that says that defrauding a customer is cause for dismissal, it is clear from the Claimant’s testimony that his position with the company was one that required a great degree of trust. As a ticketing agent, he had access to customer credit card information and the ability to issue and modify tickets.

[31] The Federal Court of Appeal has said that misconduct under the Employment Insurance Act is not a mere breach by the employee of any duty related to his employment, but “it is a breach of such scope that its author could normally foresee that it would likely result in his dismissal.”^{Footnote 7}

[32] The Employer stated to the Commission that the Claimant’s actions constituted a serious fault and a breach of the relationship of trust with the Claimant. The evidence collected during their internal investigation was sufficient to demonstrate a serious infraction and breach of trust that left them no choice but to end the Claimant’s employment.

[33] I find that the Claimant ought to have been aware that using a customer’s credit for his own use would breach the relationship of trust with his Employer and that his dismissal was a real possibility. Since it is more likely than not that he did commit the actions his Employer dismissed him for and he ought to have known that using a customer’s credit for his own use could lead to his dismissal, I find that the Claimant did lose his job because of his own misconduct. He is therefore disqualified from receiving regular EI benefits.

Conclusion

[34] The appeal is dismissed. This means that the Claimant is disqualified from being paid EI benefits.