Employment Insurance (EI)

Decision

[1] I am allowing the Employer’s appeal. The Claimant lost his job because of misconduct. He cannot receive employment insurance benefits.

Overview

[2] K. R. is the Claimant. He worked for X (the Employer). The Employer expected the Claimant to take a load of materials to the dump at the end of his workday. The Claimant planned to take the load to the dump the following morning. At the end of the workday, the Claimant and the Employer spoke on the phone and exchanged text messages. The Employer dismissed the Claimant because they believed that the Claimant had made threatening comments. The Claimant applied for employment insurance benefits. The Canada Employment Insurance Commission (Commission) decided that the Claimant lost his job because of misconduct. The Commission refused to pay benefits to the Claimant. The Claimant asked for a reconsideration. The Commission changed its decision. It decided that the Employer had not proven that the Claimant’s actions were misconduct. The Commission decided to pay benefits to the Claimant after all. The Employer appealed to the Tribunal.

[3] I am allowing the Employer’s appeal. The Claimant sent a threatening text message to the dispatcher. I think it is likely that he also made a threatening comment to the dispatcher over the phone. The Employer has a zero tolerance policy for threats and abusive behaviour. The Claimant should have known that he could lose his job for making threatening comments. The Claimant lost his job because of misconduct.

Preliminary matters

[4] The Employer sent a large package of evidence and submissions the evening before the hearing. The Claimant only received this package on the morning of the hearing. At the hearing, the Claimant said that he wanted to proceed with the hearing, even though he had only received the package that morning. After the hearing, he asked for time to make submissions in response to the Employer’s documents.

[5] At the hearing, the Employer’s representative said that they would not object to giving the other parties more time to respond to their submissions. For this reason, and because the Claimant did not have much time to review the Employer’s submissions before the hearing, I agreed to accept additional submission after the hearing. Each of the parties involved in this hearing made submissions after the hearing. I have accepted all of the post-hearing submissions. I have considered these submissions while making this decision.

Issue

[6] I must decide whether the Claimant lost his job because of his misconduct. To make this decision, I will consider the following questions:

• Did the Claimant threaten the dispatcher (B.M.)?
• Did the Employer dismiss the Claimant because of the threats?
• Are the Claimant’s actions misconduct?

Analysis

[7] To make a decision about whether the Claimant lost his job because of misconduct, I have to consider several questions:

• Did the Claimant act deliberately? Did he know what he was doing? Or was he so careless that it seemed like he did not care what might happen to his job?^{Footnote 1}
• Did the Claimant know that he could lose his job because of his actions? Or would a reasonable person understand that someone would probably lose their job if they acted the same way?^{Footnote 2}

[8] If the Claimant lost his job because he did something on purpose, or because he was very careless, and if he knew he could probably lose his job because of his actions, then he lost his job because of misconduct.^{Footnote 3} If the Claimant lost his job because of misconduct, then he cannot receive employment insurance benefits.^{Footnote 4}

[9] The Employer has the burden of proof. This means that it is up to the Employer to prove that the Claimant lost his job because of misconduct.^{Footnote 5}

Issue 1: Did the Claimant threaten B.M.?

[10] The Claimant sent a threatening text message to B.M. I also think it is likely that he made threatening comments to B.M. during a phone conversation.

[11] The Employer and the Claimant agree on the basic facts about the Claimant’s job. They also agree about some of the things that happened on his last two days of work.

[12] The Employer is an excavation and utilities company. The Claimant worked as a driver. Part of his job was to drive loads of material from client sites to the dump. On February 19, 2020, the Claimant did not take a load to the dump at the end of the workday. Instead, he took the load to the dump in the morning of February 20. After he went to the dump, the Claimant worked all day. At the end of the workday, he did not take a new load to the dump. He planned to take the load to the dump the following morning.

[13] The Employer and the Claimant disagree about what happened in the evening of February 20.

[14] The Employer argues that the Claimant made a verbal threat and sent a threat via text message. The Claimant disagrees. He argues that he did not threaten B.M. or anyone else on the phone. He argues that he did not threaten violence in the text message. He argues that he was threatening to quit.

[15] The Claimant’s text message exchange with B.M. is part of the appeal record. B.M. sends the Claimant dispatch information about his job the next day. Two minutes later, B.M. sends the following message to the Claimant:

Hey [Claimant], Please come into the office for 6:00 a.m. On the dot!

[16] The Claimant responds:

Really.

On the dot, now you have my back up and I will follow through so make sure you are ready for the out come. I am very easy going until pushed into a corner.

[17] I acknowledge that the Claimant argues that this message means that he was threatening to quit. However, the Employer argues that they could not know that this was simply a threat to quit.

[18] I find the Employer’s argument convincing. The Claimant’s text message does not mention quitting. The message does not explain what the “outcome” might be. The message says that the Claimant has his “back up” and feels that he is being “pushed into a corner.” I think it was reasonable for the Employer to interpret this message as a threat of violence.

[19] I find that the Claimant sent a threatening text message to B.M.

[20] The Employer also argues that the Claimant made a verbal threat. The Employer’s evidence about when and to whom the Claimant made a verbal threat is not clear.

[21] The manager (R.J.) sent an email to the union representative on March 3. This is the Employer’s earliest and most detailed description of the verbal threat. According to the email, the Claimant made threatening comments to B.M. when they talked at the end of the workday. The Claimant told B.M. that he would not work long hours, and that if B.M. tried to make him work those hours, he had “better be ready for what happens next.”

[22] The Employer’s other emails and the incident report say that the Claimant made verbal threats. These documents do not provide details about when and how the Claimant made verbal threats.

[23] At the hearing, B.M. testified that he spoke to the Claimant after work in the evening of February 20. They spoke about dumping materials at the end of the workday instead of the morning. B.M. said that the Claimant told him that he would not work those hours and that B.M. “better be ready for what happens next.” B.M. said that he was used to people getting upset at work, but he was not used to this type of threat. He called R.J. immediately after the conversation to report the threatening comments.

[24] The Claimant says that he did not make any verbal threats. He agrees that he spoke to B.M. after he finished work on February 20. He agrees that they spoke about dumping materials at the end of the day instead of the morning. The Claimant told the Commission and the Tribunal that this conversation was cordial. At the hearing, he said that he did not make any threatening comments during this call.

[25] The Claimant also gave the Commission a detailed explanation of the events in the evening of February 20.^{Footnote 6} The Claimant’s explanation is different from the Employer’s. The Claimant says that he spoke to B.M. and R.J. several times that evening. He denies making any threats during these phone calls.

[26] The Employer and the Claimant have provided contradictory evidence the phone calls on the evening of February 20. I understand that it is difficult to remember the exact details about a series of phone calls several months after they happened. Even though they have said slightly different things about when and how often they spoke, the Claimant and the Employer have consistently made the same argument. The Employer has always said that the Claimant made verbal threats. The Claimant has always said that he did not make threatening comments.

[27] When there are different explanations of what happened, I have to decide which version is most likely. I have to consider all of the evidence and make a decision on the balance of probabilities. ^{Footnote 7} I have to ask myself: is it more likely than not that the Claimant made threatening comments to B.M. during a phone call?

[28] I think it is likely that the Claimant made threatening comments during a phone call. I think it is likely because he sent a threatening text message to B.M. I think that the fact that he sent a threatening text message makes it more likely that he also made a similar threat while he was speaking to B.M.

[29] I also think the fact that the Claimant sent further text messages to B.M. and another co-worker after the Employer dismissed him adds to the Employer’s credibility.

[30] The Employer submitted evidence of text messages the Claimant sent to B.M. and another co-worker. After the Employer dismissed the Claimant, the Claimant sent a final text message to B.M. saying that R.J. had fired him over “nothing” and that they had already talked about dumping materials in the morning.

[31] The Claimant also sent a text message to a co-worker after the Employer dismissed him.^{Footnote 8} He tells the co-worker:

You just had to keep everyone informed of my business, good luck in your future endeavours.

[32] These messages are not explicitly threatening. However, the messages suggest that the Claimant was angry with B.M. and his other co-worker because of his dismissal. In particular, the Claimant sent the message to his co-worker even though she was not involved in the text messages and conversations with B.M. and R.J. He sent the text message to her late in the evening and without any obvious reason to involve her. I find that these messages give weight to the Employer’s argument that the Claimant made a verbal threat to B.M.

[33] I find that the Claimant sent a threatening text message to B.M. I also think it is likely that the Claimant made a threatening comment to B.M. while they were speaking on the phone.

Issue 2: Did the Employer dismiss the Claimant because of the threats?

[34] I find that the Employer dismissed the Claimant because of the threats to B.M.

[35] The Employer and the Claimant disagree about the cause of the Claimant’s dismissal. The Claimant argues that the Employer really dismissed him because he did not take a load to the dump at the end of the workday.

[36] The Employer argues that they dismissed the Claimant because of the threats he made to B.M. The Employer says that they have a zero tolerance policy for threats and abusive behaviour, and so they dismissed the Claimant. They say that they were going to discipline the Claimant because he did not go to the dump at the end of the workday, but they say that they did not fire him because of this.

[37] I find the Employer credible. B.M.’s text messages show that he sent the Claimant the dispatch information for February 21, and then asked the Claimant to come in for an early morning meeting. I think this shows the Employer expected the Claimant to work on February 21, even though they disagreed with the Claimant’s decision to go to the dump in the morning. If the Employer had fired the Claimant because of the disagreement about dump times, I do not think they would have sent dispatch information for February 21.

[38] The Employer has always said that they dismissed the Claimant for making threats. The emails and messages the Employer sent shortly after the dismissal say that they dismissed the Claimant for making threats. On February 21, R.J. sent an email to the company owner saying that he fired the Claimant for making threatening comments verbally and via text message. On March 3, R.J. sent an email to the union representative saying that he fired the Claimant for threatening B.M. verbally and via text message. R.J. also sent a text message to the Claimant on the night of February 20 saying that the Claimant would not get severance pay because he threatened management and left work early.

[39] I find that all of this evidence demonstrates that the Employer dismissed the Claimant because of the threats towards B.M. In other words, the threats caused the Claimant’s dismissal. I do not believe that the Employer dismissed the Claimant because of the disagreement about when to take materials to the dump.

Issue 3: Are the Claimant’s actions misconduct?  

[40] The Claimant made threatening comments to B.M. He should have known that he might lose his job because of his actions. This is because the Employer has a zero-tolerance policy for threats. The Claimant lost his job because of misconduct.

[41] The Claimant argues that he did not verbally threaten the Employer. He says that the text message was only a threat to quit. The Commission agrees with the Claimant. The Commission argues that the Claimant’s text message is not a clear threat of violence.

[42] The Employer argues that they have a zero-tolerance policy for threats or abusive behaviour. They argue that the Claimant’s messages were vague enough that they seemed like a threat of violence.

[43] The Employer provided copies of their workplace policies on safety and harassment. According to the Employer’s health and safety manual, the Employer has a zero-tolerance policy for bullying and harassing behaviour and abusive or threatening comments. The manual says that the Employer will not tolerate violence or threats of violence and violating this policy can lead to discipline, including dismissal.

[44] At the hearing, the Claimant said that he signed many documents on his first day of work. He said he did not know anything about the Employer’s harassment policy, but he knew that he was not supposed to harass people. He said that he had not harassed anyone at work.

[45] The Employer included copies of acknowledgements signed by the Claimant. The Claimant signed and agreed to a declaration saying that he agreed to follow the procedures set out in the health and safety manual. He agreed to the Employer’s anti-bullying, harassment and violence policy. He agreed that he understood that the Employer had zero tolerance for “any form of bullying, harassment and/or abusive behaviour.” He also agreed to treat dispatch employees with respect at all times. At the hearing, the Claimant agreed that he signed these documents.

[46] The policies described in these documents are clear. I find that the Claimant knew, or should have known, that the Employer had a zero-tolerance policy prohibiting abusive behaviour. He knew, or ought to have known, that he could lose his job if he violated the Employer’s policy.

[47] Furthermore, the Employer gave the Claimant a verbal warning about professional expectations on February 4, 2020. I find that this meeting should have reinforced the Claimant’s understanding of the Employer’s expectations.

[48] I find that it is likely that the Claimant told B.M. that he should “be ready for what happens next” or a similar comment during a phone conversation. I also find that the Claimant sent a text message to B.M. saying that he had his “back up,” that he would “follow through,” and that B.M. should be “ready for the outcome.”

[49] These messages do not say that the Claimant is threatening to quit. They do not clearly say what the outcome might be. I think it was reasonable for the Employer to interpret these messages as a threat of violence. I think that the Claimant’s text message threat and verbal threat violate the Employer’s policy about abusive and threatening behaviour.

[50] The Claimant acted deliberately when he made a verbal threat and sent the threatening text message. These threats led directly to his dismissal. He knew, or should have known, that the Employer had zero tolerance for threatening messages. The Claimant lost his job because of misconduct.

Conclusion

[51] I am allowing the Employer’s appeal. The Claimant cannot receive employment insurance benefits because he lost his job due to misconduct.