Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Tribunal agrees with X (the “employer”). The employer has proven that J. S. (the “Claimant”) lost her job because of misconduct (in other words, because she did something that caused her to lose her job). This means that the Claimant’s hours of insurable employment from this employer cannot be used in the calculation of her entitlement to Employment Insurance (EI) benefits.^{Footnote 1}

Overview

[2] The Claimant lost her job at a fast food restaurant. The General Manager (“G.M.”) of the employer says the Claimant had been suspended for a week after an incident on July 30, 2019 where she showed attitude to her manager, swore and was being loud in the back of the restaurant. The Claimant was asked to attend a coaching session for that incident after the suspension, on August 6, 2019, but failed to attend. The employer rescheduled the coaching session for August 13, 2019 at 5:00 p.m. The Claimant was sent an email warning that her failure to attend would result in termination. On August 13, 2019, the Claimant asked the G.M. to reschedule the meeting to 5:30. The G.M. agreed but said he would not wait a minute more. The Claimant arrived late so was terminated.

[3] The Claimant says she did attend the final meeting on August 13, 2019. She says she arrived only a minute or so late due to traffic, which was not her fault. The Claimant says the G.M. saw her arrive and stood at his car talking to the duty manager for five minutes before driving off. The Claimant denies showing attitude to her manager or swearing or being loud on July 30, 2019. She also says she missed the first coaching session on August 6, 2019 as no one told her a time to attend.

[4] The Commission initially accepted the employer’s reason for the dismissal and decided that the Claimant lost her job because of misconduct. However, the Commission changed its mind upon reconsideration. The employer appealed the Commission’s decision to the Social Security Tribunal (“Tribunal”).

[5] The Claimant made a claim to the Ministry of Labour (MOL) as she was not paid termination pay. On November 13, 2019, an Employment Standards Act (“ESA”) Officer issued a decision, which provided that the employer had not contravened the Employment Standards Act, 2000.^{Footnote 2} The decision noted the Claimant lost her employment due to her wilful conduct in missing the final coaching meeting and was therefore not entitled to termination pay.^{Footnote 3}  The employer says I should follow this result.

[6] I have to decide whether the Claimant lost her job due to misconduct. I have decided, for the reasons set out below, that she did.

Matters I have to consider first

Adjournments and post-hearing documents

[7] I adjourned the hearing on November 9, 2020 to November 16, 2020 as the G.M. of the employer said at that hearing that he did not have the complete Tribunal file and had not reviewed the entire Tribunal file. The hearing on November 16, 2020 was not completed, so it was reconvened on November 24, 2020 for completion.

[8] At the hearing on November 24, 2020, the G.M. testified about some documentation he had sent to the Tribunal the night before.^{Footnote 4} The documentation included an email of August 11, 2020, a workplace harassment policy dated May 22, 2018, and Store Policies and Safety procedures signed by the Claimant June 28, 2018. I had not received that documentation by the time of the hearing, nor had the Claimant. I allowed the employer to testify about this material. I gave the Claimant an opportunity to provide post-hearing written submissions in respect of that material. The Claimant provided a submission on November 24, 2020. In that submission, she provided text documentation she had previously submitted to the Tribunal.^{Footnote 5} As this material was not new evidence, it was sent to the other parties without an opportunity to comment.

Issues

[9] I first have to decide whether I am bound to apply the November 13, 2019 decision of the ESA Officer that the Claimant lost her employment due to her wilful conduct in missing the final coaching session.  

[10] If not, I must make my own finding about whether the Claimant lost her job because of misconduct. To do so, I have to decide three things. First, I have to determine why the Claimant lost her job. Then, I have to determine whether the Claimant committed the conduct for which she was fired. Finally, I have to decide whether the law considers that reason to be misconduct.

Analysis

Am I bound by the ESA officer’s decision?

[11] No. I find I am not.

[12] In order for me to be bound by the ESA officer’s decision, the doctrine of “res judica” would have to apply.^{Footnote 6} Generally speaking, “res judicata” means that, once a dispute has been finally decided, it cannot be litigated again. The purpose of this rule is to bring finality and closure to litigation. The res judicata rule only applies where:

1. the same question has already been decided in the prior proceeding;
2. the prior decision is final; and
3. the parties to the two proceedings are the same.^{Footnote 7}

[13] However, even if the above criteria is met, I have the discretion to consider whether applying the conclusion from the initial decision would create an injustice. If so, I don’t have to apply the initial decision.^{Footnote 8}

[14] I find that only two of the three criteria required for the application of res judicata are met so that the res judicata doctrine does not apply My reasons are set out below.

Same question

[15] The issue in the ESA matter was whether the Claimant was entitled to termination pay. The same facts were in issue. While not exactly identical, the essential components of the legal tests are the same. The ESA officer considered section 55 of the Employment Standards Act, which provides employees are not entitled to notice if their conduct is wilful and the employee is guilty of misconduct, disobedience or neglect of duty. The employee’s conduct must not be trivial and the conduct must not have been condoned by the employer.

[16] The test for misconduct under the Employment Standards Act is whether the Claimant knew or should have known that her conduct could get in the way of carrying out her duties toward her employer and that there was a real possibility of being let go because of that.^{Footnote 9} The ESA officer did not set out a definition for “wilful behavior” but it is apparent that the test she applied was the same as that under the EI Act. She considered whether the Claimant was aware her employment was in jeopardy in not attending the final meeting. I am satisfied the facts and issues being decided in MOL proceeding are essentially the same as I must decide in this case.

Prior decision was final

[17] I am satisfied the decision made by the ESA officer was final. The Claimant could have appealed the ESA Officer’s decision to the Ontario Labour Relations Board within 30 days of date of receipt of the November 13, 2019 decision.^{Footnote 10} However, she confirmed she did not do so. So, the ESA Officer’s decision is final.

Not the same parties

[18] The Commission was not a party before Employment Standards Act claim. Only the Claimant and the employer were a party to that proceeding. As such, this factor for the application of the doctrine of res judicata is not satisfied.

[19] The doctrine of res judicata does not apply, as all three criteria for its application have not been met.

[20] Even if I had found that all the three criteria had been met, I would exercised my discretion to not apply the res judicata doctrine in this case. Both the Claimant and the employer testified that no hearing was held in the ESA proceeding. Rather, the ESA officer contacted them separately. Neither party had the opportunity to hear the other testify or to test their evidence. The proceeding was in fact an investigation, not a hearing. In that regard, the ESA officer says that the decision of November 13, 2019 summarizes the results of her investigation.^{Footnote 11}  As such, I find that applying the res judicata doctrine in this case would create an injustice, as the parties were not fully heard in the prior proceeding.

Why did the Claimant lose her job?

[21] I find the Claimant lost her job on August 21, 2019 because she was late for the August 13, 2019 rescheduled coaching session.

[22] The owner of the franchise restaurant told the Commission that the Claimant lost her job for multiple reasons including rude behaviour with co-workers and customers and absenteeism and lateness. He said she also stopped listening to the manager. The owner said the Claimant would come to work late by one to two hours or some days miss work, even though she was scheduled due to her availability. The owner explained they had several meetings with the Claimant, she was given written warnings but did not change. He said he joined the company in 2017 and there had been complaints in the past. They contacted the head office and the General Manager (“GM”) set up a meeting with the Claimant for corrective action but she did not show up. Then after a second meeting was rescheduled with the GM, the Claimant was told that if she was even one minute late she would be dismissed. She did not show up on time so a decision was made to terminate her.^{Footnote 12}  

[23] The G.M. of the employer testified that on July 30, 2019, the Claimant came in without a proper name tag and had some attitude problems with the duty manager and was not listening. The G.M. said this was not new behaviour. He said prior managers had the same issue before he came on in 2018, although he had no direct knowledge of those incidents. The G.M. said he only comes to this store once a week. He was in the restaurant on July 30, 2019. The duty manager came to him that evening, telling him the Claimant was starting closing duties at 7 p.m. even though they close at 11:00 p.m. The G.M. said that when the duty manager told her the Claimant she was doing it too early and she should do the dishes at the back, she used the “F” word. The G.M. said the Claimant was also yelling loudly when she was at the sandwich station at the back and customers heard this. The G.M. said he told the duty manager to assign the Claimant duties and if she refused, they would go from there.

[24] The GM decided that the Claimant should have a coaching session because of her behaviour with the duty manager. He says he wrote a note scheduling the coaching session for August 6, 2019 at 5 p.m. and gave the note to the duty manager to give to her. The GM said he did not speak to the Claimant himself. He says he did not see the duty manager give the Claimant the note but the duty manager told him he gave it to her at closing time. The G.M. says the duty manager told him that the Claimant had tore the note up and said she was not coming to the meeting. The G.M. decided to suspend the Claimant for a week then. The GM said that no written notice of suspension was given to the Claimant. It was just written on the schedule.

[25] The G.M. said a week prior to July 30, 2019, the owner told him he had received a complaint from a customer that the Claimant had been rude to him. The GM said that he sat with the Claimant then and talked to her about not showing rude behaviour and also spoke to her about issues with her uniform and name tag. The G.M. said he told the Claimant that if she did not change her behaviour she would end up losing her job.

[26] The G.M. testified that he did not intend to terminate the Claimant at the August 6, 2019 coaching session. He said he does not jump straight to termination. The G.M. said in the past the Claimant had problems but she had improved. He even told her four or five months before the July 30, 2019 incident that he was thinking of her as a manager. The G.M. said the Claimant failed to show up at the August 6, 2019 meeting and then lied about not knowing the time of the meeting. Despite his belief that she was aware of the time of the first coaching session, the G.M. says he gave her the benefit of the doubt and gave her another chance. The G.M. says the coaching session was then rescheduled to August 13, 2019 at 5:00 p.m. The G.M. said the Claimant was sent an email warning her she would be terminated if she did not attend. The G.M. provided a copy of that email dated August 11, 2019. It ways, “This is to make you aware of the Coaching Session between you and [G.M.’s name]. The session will take place in the store on 13 August, 2019 (Tuesday) at 5 PM sharp. It is mandatory for you to attend the session and the result of not doing so will be your termination.”^{Footnote 13}  The G.M. said the Claimant responded with a text asking if was to be a paid meeting so he knows she got this email.

[27] The G.M. testified further that in the afternoon of August 13, 2019, the Claimant texted him to ask to reschedule the meeting to 5:30, saying she had forgotten she had a doctor’s appointment. The G.M. testified that he texted the Claimant he would wait until 5:30 p.m. but not a minute more. The G.M.’s text is on file. It says, “I will wait till 530 but not a single minute more.” ^{Footnote 14} The G.M. says he waited until 5:35 p.m. in the restaurant and then another 5 minutes outside at his car. He says when the Claimant did not show up by 5:40 p.m., he left as he had another meeting to attend in Welland. The G.M. says he saw the Claimant driving into the parking lot as he was driving out, but he could not wait.

[28] The G.M. says the Claimant is not telling the truth when she told the Commission that she phoned him to tell him she would be late. He says she did not phone him to tell him she would be ten minutes late. He says this is a total lie. The G.M.said she could have called him but she did not. The G.M. testified that he is the last person to fire an employee but the Claimant had been given opportunities to show respect for the job and a willingness to attend the coaching sessions but he had to put his foot down. He said this is why she was terminated.

[29] The Commission says the Claimant was terminated because the employer considered the Claimant's failure to attend the final coaching meeting as insubordinate and a dereliction of her duty, and made the decision to terminate the Claimant without any further warning.

[30] The Claimant is unsure why she was terminated. She says she thinks the employer did not like her and how she was doing things.

[31] I find the Claimant was terminated for failing to attend the rescheduled coaching session on August 13, 2019 on time, after having been warned that failure to attend would result in termination.

[32] The Claimant had already been disciplined for the July 30, 2019 incident, having been suspended for a week. I find the intended purpose of the coaching session was not termination but rather coaching. In that regard, the owner sent the Claimant a text on August 7, 2019 after the missed first coaching session on August 6, 2019 saying, “Hi J. S. as said before you are not terminated. You were supposed to meet S. W.. Can you contact him he has to go over few things with you to make sure those mistakes are not repeated so please contact him and set up a meeting with him & please keep me in the loop.”^{Footnote 15}

[33] The text exchange in which the Claimant was notified of her termination also makes clear it that it was the Claimant’s failure to attend the final meeting on time, which resulted in the Claimant’s termination. In that regard, the GM sent the Claimant a text saying, “Hi You are not telling truth AGAIN. I left at 17:40 You never called that you are late. You have no respect for my time. I had to go for other appointment in welland. I waited for you 40 min. I am not convinced to give you any more chance. I will send you termination notification soon. Thanks”.^{Footnote 16}

[34] I find the Claimant’s failure to attend the August 13, 2019 coaching session on time was the reason for her termination.  

Did the Claimant commit the conduct for which she was fired?

[35] Yes. I find the Claimant committed the conduct for which she was terminated. She did not attend the coaching session of August 13, 2019 on time.

[36] The Claimant and the employer do not agree on what time she arrived for the August 13, 2019 coaching session. As above, the G.M. says the Claimant arrived at 5:40 p.m. as he was driving out of the parking lot. He says she never called him to tell him she would be late.

[37] The Claimant testified that she arrived and had parked between 5:30 p.m.to 5:32 p.m. in the parking lot. She says she checked the time as she did not want to be late for the meeting. She testified that she had not called the G.M. to say she was going to be late   She says she saw the G.M. coming out of the side door with the duty manager, who had a folder. They went near the G.M.’s car and were there for about 5 minutes. She says the G.M. saw her. The Claimant testified she was not sure if they were meeting inside or outside as it was a nice day and sometimes they did meet outside. She thought the G.M. would approach her. However, the G.M. then drove off and the duty manager returned inside. The Claimant says she texted the store owner after about what happened.

[38] I asked the Claimant about the Commission’s notes that said she had called the G.M. to say she would be late and he had said he would wait 10 more minutes.^{Footnote 17} The Claimant then testified that she did phone the G.M. at 5:28 p.m. to advise she would be late but he did not pick up. She said that she got there on time anyway. She says she forgot she made that call as it has been a long time. She says she can’t get a record of the call as her phone only keeps records for a week.

[39] The Claimant testified that she had no idea she would be terminated if she was late. She thought this coaching session was about her doing the closing early on July 30, 2019. The Claimant testified that she knew the August 13, 2019 coaching session was scheduled for 5:00 p.m. and they had rescheduled for 5:30 p.m. She confirmed in her post hearing submission that she had received the employer’s August 11, 2019 email saying attendance was mandatory or she would be terminated.^{Footnote 18} She also knew it was mandatory to attend. She says she was at the meeting only a few minutes late but the G.M. decided to leave.

[40] The Claimant says the G.M. is not being truthful about a lot of things. She testified that on July 30, 2019 she was taking down the birdcage at 8 p.m. as was the norm to do. The duty manager told her that the G.M. did not want her to do that until later in the evening but it had already been taken down. She told the duty manager no one had explained that to her. She says that was the end of the conversation. She says she never swore and there was no yelling. The Claimant also denies ripping up the note with the meeting time on it. She says at the end of the night the duty manager told her she was to have a meeting on August 6 with the G.M. He said the G.M. would call her with a time. He did not say what the meeting was about and she was not told she was suspended. The Claimant says the G.M. never called her with a time for the meeting so she did not go. The Claimant says that she was not emailed a work schedule and when she enquired why, a manager told that the G.M. had taken her off the schedule because she missed the first coaching session.

[41] The Claimant also denies that the G.M. met with her a week before the July 30, 2019 incident or that he gave her any warning she could lose her job. The Claimant testified that the owner had told her a friend had come up to him at the Mosque and said she had asked him to leave the restaurant. The Claimant explained to the owner she had been told by “M” to do this as it was closing time and she was not rude. The owner said “okay” and that was it.

[42] The Commission submits that employer has also provided conflicting information. The employer first said the Claimant was late for the final coaching session^{Footnote 19} and then told the ESA Officer that the Claimant did not show up for the session.^{Footnote 20} The Commission says the employer also said in his Notice of Appeal that the Claimant did not show up. The Commission says the that it accepts that the Claimant’s position that due to traffic, the Claimant believed she would be late, so she contacted the G.M. and he allowed her 10 additional minutes to get to the meeting.

[43] I find it more likely than not that the Claimant arrived at the parking lot at 5:35, not 5:30 to 5:32 p.m.

[44] I do not find the Claimant’s evidence that she arrived between 5:30 p.m. and 5:32 p.m. to be credible. In that regard, I note the Claimant stated in her ESA claim form that she arrived five minutes late.^{Footnote 21}  I place significant weight on the information the Claimant provided in her ESA claim. I find it unlikely the Claimant would say she was five minutes late in that claim, if she wasn’t, as that fact was adverse to her claim.

[45] The Claimant also told the Commission’s reconsideration agent she was running five minutes late due to traffic. The Commission’s notes from that conversation say, “the day of the coaching session she was running 5 minutes late due to traffic, which was outside of her control, and she called [G.M.’s name] and advised she would be late a few minutes. [G.M.’s name] agreed to stay 10 more minutes but no longer. She arrived at the store in time and she waited outside. She saw the G.M. talking to a manager at his car. He got into it and left. She talked to the owner immediately and explained the situation. She was told to contact the G.M. She tried to call and text him multiple times and got no response. She called the store for work and she was told she was taken off the schedule.”^{Footnote 22} On August 21, 2019, the G.M. told her to pick up her final cheque and drop off her uniform.

[46] I also not accept the Claimant’s information to the Commission that she spoke to the G.M. and he permitted her to be ten minutes late. The G.M. denies this. I do not find the Claimant to be credible on this point because she changed her information. First, despite what she told the Commission, the Claimant testified that she did not call the G.M. to say she would be late. Later, in her testimony she said that she called the G.M. at 5:28 and he did not pick up. She said she forgot about this. The Claimant has given three different versions of what happened. While I acknowledge that some time has passed, it is unlikely the Claimant would forget she made the phone call at all but then remember the very specific detail that she called the G.M. at 5:28 p.m.

[47] I find, as a fact, therefore, that the Claimant arrived at the August 13, 2019 coaching session, late, at 5:35 p.m. I also find the Claimant did not call the G.M. to tell him she would be late. The Claimant committed the conduct for which she was fired.

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

[48] The reason for the Claimant’s dismissal is misconduct under the law

[49] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 23} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 24} The Claimant doesn’t have to have wrongful intent (in other words, she doesn’t have to mean to be doing something wrong) for her behaviour to be misconduct under the law.^{Footnote 25}

[50] There is misconduct if the Claimant knew or should have known that her conduct could get in the way of carrying out her duties toward her employer and that there was a real possibility of being let go because of that.^{Footnote 26}

[51] The employer has to prove that the Claimant lost her job because of misconduct. The employer has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that the Claimant lost her job because of misconduct.^{Footnote 27}

[52] The G.M. says that there was misconduct. H says the Claimant knew she could be terminated for her conduct in attending the meeting late. He says the Claimant signed a discipline policy when she was hired which was reviewed with her in 2018. It provides for a verbal warning, a written warning, and a final warning. However, it also says if there is gross misconduct, it can go straight to termination.

[53] The G.M. testified that he did not provide any specific warnings or discipline for absenteeism or lateness to the Claimant himself in the six months prior to the termination. He said the restaurant managers handle those things until they get big. However, the G.M. says the Claimant was sent an email on August 11, 2019 scheduling the coaching session on August 13, 2019 for 5 p.m. sharp in the store. The email said it was mandatory for the Claimant to attend or she would be terminated.^{Footnote 28} He sent her a text, agreeing to her request that the meeting be postponed until 5:30 p.m. but told her he would not wait a minute more.^{Footnote 29} Despite that, she still did not show up on time. The G.M. says this is wilful conduct.

[54] The Commission says there was no misconduct because the employer failed to provide the claimant a clear policy and procedure on progressive discipline. The Commission says the employer agreed to extend the start time of the final meeting to account for the traffic the Claimant encountered. The Commission says the Claimant might have been delayed by traffic for the final incident, but this is not wilful conduct, as the Claimant had no control over other drivers. The Commission submits the Claimant understood the importance of attending the second coaching session on time and she was running late and took steps to advise the employer. She attended on time. However, the General Manager made the decision to leave and subsequently terminate the Claimant without any further warnings.

[55] The Claimant says there was no misconduct. She says the last time she saw the discipline policy was in 2015 when she started and she does not recall it being reviewed with her in 2018. Her understanding was that discipline would begin with a verbal warning, followed by four write-ups. If there were four write-ups for the same thing, this would result in termination. The Claimant says she did not understand that you could be terminated for one serious incident, without progressive discipline. The Claimant testified that she had not had any discipline in the six months prior to termination for lateness or absenteeism or rudeness. She was not aware of a specific policy on lateness or absenteeism.

[56] The Claimant agreed she knew it was mandatory for her to attend the August 13, 2019 coaching session. She said she was going to College at the time and she did not want to lose her job. She says she did attend the meeting and it was the G.M. who decided to leave. She says if she was a few minutes late, it was due to traffic, which she could not control. She says she did not anticipate being terminated for being late to that meeting.

[57] The G.M. filed a number of policies post-hearing. The store polices were signed by the Claimant on June 28, 2018.^{Footnote 30} None of the policies deal with conduct for which the Claimant was fired – being late for a coaching session so they are not relevant. No discipline policy was provided.

[58] Despite the lack of progressive discipline for lateness by the employer, I find the Claimant knew that attending late at the coaching session would result in her termination. The Claimant was specifically advised in the August 11, 2019 email that she was to attend in the store at 5 p.m. sharp for the coaching session meeting and failure to attend would result in dismissal. She then asked the G.M. to change the time to 5:30.p.m. The G.M. agreed but told her he was not waiting a minute past 5:30 p.m. The implication from the G.M’s text is that if the Claimant was more than a minute late, the meeting would not take place as the employer was going to leave. It was clear that for the meeting to take place with the Claimant’s attendance, she had to attend on time. Despite that awareness, the Claimant arrived five minutes late.   

[59] I find the Claimant’s conduct in arriving five minutes late was so reckless to amount to wilfulness. Knowing her job was in jeopardy if she missed the meeting and knowing the G.M. would not wait longer than 5:30 p.m., it was reckless for the Claimant to not have either allowed herself enough time to get to the meeting on time, considering traffic or to have called the G.M. and explained she was going to be late because of the traffic. Her actions therefore amount to misconduct.

So, did the Claimant lose her job because of misconduct?

[60] Yes. Based on my findings above, I find that the Claimant lost her job because of misconduct.

Conclusion

[61] The employer has proven that the Claimant lost her job because of misconduct. This means that the appeal is allowed.