Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] I find that the Appellant did not stop working because of misconduct.

Overview

[3] The Appellant was a cook at X. On December 26, 2019, the employer dismissed the Appellant for insubordination because she allegedly did not comply with an occupational health and safety directive. Specifically, the employer alleges that she did not wear covered shoes during her shift on December 24, 2019.

[4] On May 22, 2020, the Canada Employment Insurance Commission (Commission) informed the Appellant that it could not pay her benefits, since she had stopped working because of misconduct.

[5] The Appellant admits to working in sandals between 11:30 a.m. and 4:30 p.m. on December 24, 2019, but she submits that she did not have a choice, since she had injured her foot. In addition, she argues that she was not dismissed, since the Administrative Labour Tribunal (ALT) changed the penalty to a suspension from December 24, 2019, to January 5, 2020.

[6] I have to decide whether the Appellant stopped working because of her misconduct.

Issues

[7] Why was the Appellant dismissed?

[8] Is the reason for the dismissal misconduct under the Act?

Analysis

Why was the Appellant dismissed?

[9] The manager at the employer explained that he dismissed the Appellant on December 26, 2019, because, at the end of the day on December 24, 2019, the assistant manager saw the Appellant working in unsafe shoes. The employer submits that the Appellant often worked in unsafe shoes. It explained that it had issued a final warning to the Appellant on December 12, 2019, about the use of safe footwear. The manager allegedly told her to wear [translation] “closed” shoes to prevent accidents.

[10] The letter of dismissal indicates that the Appellant was dismissed for her insubordination and for failing to comply with minimum occupational health and safety rules.

[11] The Appellant was dismissed because she was allegedly insubordinate by not complying with the employer’s directive to wear covered shoes with non-slip soles in the kitchen.

Is the reason for the dismissal misconduct under the Act?

[12] A worker who is dismissed because of their misconduct cannot receive Employment Insurance benefits.^{Footnote 1} While the Commission’s decision concerns misconduct under section 30 of the Act, the analysis is the same if the Appellant was suspended from her job because of her misconduct. A worker who is suspended because of their misconduct is not entitled to receive Employment Insurance benefits until the suspension ends.^{Footnote 2}

[13] The Appellant says that the ALT found that her dismissal was wrongful and that she has not yet been reinstated to her job even though the suspension was set until January 5, 2020. On October 5, 2020, after receiving the ALT’s decision, the Appellant went into work. The employer required her to be screened for COVID‑19. The Appellant was tested on October 6, 2020, and the test came back negative. She is still waiting to be reinstated to her job.

[14] However, since I have jurisdiction because of the Commission’s decision, the issue is whether, at the time of the events, the reason for the dismissal was misconduct under the Act.^{Footnote 3}

[15] To determine whether the act in question constitutes misconduct, it is not necessary to prove that the person intended to commit the act. It is enough to show that the act that led to the dismissal was wilful, that is, conscious, deliberate, or intentional.^{Footnote 4}

[16] A person can commit misconduct even if they did not intend to cause harm to their employer. Misconduct is an act an employee committed even though they knew they could be dismissed by acting in that way.^{Footnote 5}

[17] The manager at the employer explained to the Commission that the Appellant had disobeyed orders and that her attitude constituted insubordination. He explained that a policy on wearing closed shoes was posted in the kitchen and that it was mentioned in an employee handbook that the Appellant received when she was hired. He also indicated that he had warned the Appellant on December 12, 2019.

[18] The letter of dismissal is clear. Because of the accident risks involved in not complying with this directive, the manager apparently told the Appellant on December 12, 2019, that this was the only warning he was giving her and that she had to comply with it.^{Footnote 6} The letter of dismissal indicates that, despite this warning, the Appellant continued to wear shoes showing her feet when working in the kitchen and that the employer noticed this behaviour on December 24, 2019.

[19] The employer told the Commission that there had been no other warnings in the Appellant’s file before this incident.

[20] The Commission says that the Appellant did what the employer alleges and that it is misconduct because she was warned about it. The Commission explains that it is known that cooks have to wear closed shoes and that her actions were conscious and deliberate.

[21] According to the Appellant, she injured her foot on December 23, 2019. As she was pushing the refrigerator door with her right foot, another person on the other side of the door pulled it at the same time. As a result, the Appellant was pushed and lost her balance. She twisted her right foot as she fell.

[22] Instead of seeing a doctor, she took some Tylenol to alleviate the pain and to be able to finish her day. She came back to work the next day. After a few hours of standing, the pain in her foot was unbearable again.

[23] She knocked on the manager’s door around 11 a.m. to see whether he had already left, since she wanted to inform him of her injury. But the manager and the assistant manager were not there. The Appellant then took some Tylenol to alleviate the pain and to be able to finish her shift. Around 11:30 a.m., she changed into shoes that were less tight but that did not completely cover her feet. She says that she worked in those shoes until 4 p.m. From around 4 p.m. until the end of her shift around 5:30 p.m., the Appellant wore shoes that were completely closed.

[24] At the hearing, the Appellant explained that she knew that residents would not get their evening meals if she did not finish her shift, since the manager had left the workplace. She explained that she had looked for the assistant manager but had not seen her either. Because she was not scheduled to work on December 25, 2019, she figured that she could rest her foot. She did not want to cause the manager any trouble; he had finished his day early to prepare his Christmas Eve dinner.

[25] On December 26, 2019, the manager apparently dismissed her on the spot when she arrived for her shift. He allegedly told her that he [translation] “[had] two people on workers’ compensation” and that he would not have a third. Therefore, the Appellant is not sure that she was dismissed for the reason the employer gave; she found the reason given [translation] “a bit much” and did not expect to be dismissed for that reason.

[26] Concerning the final warning that the employer mentioned, the Appellant says that she worked at X for two years, that she alternated between wearing open and closed shoes during that time, that she did not know about the footwear directive, and that she was never told before December 12, 2019, that she had to wear closed shoes when working in the kitchen. She says that there was no sign about this directive in the kitchen or in the employee locker room. However, after being warned by the manager on December 12, 2019, she knew that she had to wear closed shoes, which is why she went to the manager’s office on December 24, 2019, to tell him that she had injured herself and that her shoes were hurting her.

[27] The Appellant submits that she did not act as she did to violate a directive from the manager, but to avoid causing him any trouble by finishing her shift. The Appellant knew that residents needed meals for dinner. She also says that if the assistant manager saw her wearing her shoes that were less covered, she did not know it, since the assistant manager did not warn her or come to see her.

[28] It is true that the Appellant did not comply with a directive that the employer issued, and she acknowledges it. To maintain a safe workplace, employees are not allowed to wear shoes that do not cover their feet. The Appellant knew this because the manager had warned her on December 12, 2019.

[29] However, the evidence does not clearly show that the Appellant was warned before December 12, 2019, and that this warning was a final warning. On the contrary, the evidence tends to show that the warning was a first warning and that the manager simply gave it when he stopped by the kitchen that day. He told the Appellant to wear covered shoes from then on. The evidence does not clearly show that the Appellant had previously read such a directive. However, it shows that the manager was away on December 24, 2019. The Appellant was unable to talk to him to find a solution to her problem, and she found a temporary solution that allowed her to continue her shift.

[30] What the Appellant did was wrong because, by acting in that way, she was violating a directive that the employer issued. However, I do not find that the Appellant could have expected to be dismissed for acting as she did. Even though wrongful intent is not required to determine whether the act in question constitutes misconduct, I do not find that the Appellant acted in this way to disobey the employer’s orders, as it says. The Appellant had injured herself. In the employer’s absence, and to continue her shift, she worked for three hours in shoes that did not completely cover her feet.

[31] Because the manager was away during the incident, the Appellant was unable to get advice on what she should do. And she was dismissed on the spot when she arrived on December 26, 2019, without even being able to explain herself despite the fact that the manager was not around during the incident. For this reason, the Appellant believes that the employer dismissed her out of fear that she would ask for time off and for benefits from the CNESST [Quebec’s labour standards board].

[32] According to the Appellant, from December 12, 2019, to December 24, 2019, she wore safe shoes at all times. It was not until the afternoon of December 24, 2019, that she wore shoes that were not completely closed to relieve the pain in her right foot.

[33] Given the circumstances on December 23, 2019, and December 24, 2019, and although what the Appellant did was wrong, it is not misconduct under the Act.

[34] I am of the view that the Appellant could not have expected that she would be dismissed if she wore uncovered shoes on December 24, 2019.

[35] What the Appellant did, that is, disobeying the employer’s directive by wearing shoes that did not completely cover her feet in the kitchen on December 24, 2019, was wrong, but it is not misconduct under the Act.

Did the Appellant stop working because of misconduct?

[36] The Appellant was dismissed for disobeying a directive that the employer issued, but she did not stop working because of misconduct under the Act.

Conclusion

[37] The Appellant could not have expected that she would be dismissed for acting as she did.

[38] The appeal is allowed.