Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

[2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant lost his job because of misconduct (in other words, because he did something that caused him to lose his job). This means that the Appellant is not entitled to receive Employment Insurance (EI) benefits.

Overview

[3] The Appellant worked for the employer as a truck driver, since 2014. He was dismissed from his job on February 28, 2022. He applied for EI benefits.

[4] The employer says the Appellant was dismissed because he recorded conversations he had with other employees without their consent or knowledge. When he was repeatedly asked by the employer to destroy the recordings, he refused to do so. The employer says the Appellant violated the company's privacy policy.^{Footnote 1}

[5] Even though the Appellant doesn’t dispute that this happened, he says that the recordings are his personal property, because they were made when he was at home, on his own time. He says the recordings contain evidence that the employer was tampering with his log books and paying employees incorrectly.^{Footnote 2}

[6] The Commission accepted the employer’s reason for the Appellant’s dismissal. It decided that the Appellant lost his job because of misconduct. Because of this, the Commission decided that the Appellant is not entitled to receive EI benefits.

Matter I have to consider first

[7] On reconsideration, the Commission stated that it was maintaining its decision regarding misconduct. It also stated that it was maintaining its decision regarding the Appellant’s availability for work.^{Footnote 3}

[8] At the start of the hearing, the Appellant confirmed that he was not appealing the issue of availability. He confirmed that he agreed with that decision and said that he only wanted to appeal the issue of misconduct.

[9] So, my analysis will focus only on the issue of misconduct, the only issue that the Appellant is appealing in this case.

Issue

[10] Did the Appellant lose his job because of misconduct?

Analysis

[11] The law says that you can’t get EI benefits if you lose your job because of misconduct. If you are dismissed from your job because of misconduct, you are disqualified from receiving EI benefits.^{Footnote 4}

Why was the Appellant dismissed from his job?

[12] I find that the Appellant was dismissed from his job because he violated the employer’s privacy policy. He recorded phone conversations with other employees without their consent, and then refused to follow the employer’s repeated instructions to destroy the recordings.

[13] The employer has a privacy policy that says the recording of any communication with any employee, Officer, Director, or agent of (the employer), without the express consent of all parties to the conversation, is prohibited. It says that “engaging in such misconduct may lead to a disciplinary procedure, including termination of employment for cause.”^{Footnote 5}

[14] The employer provided the Commission with a copy of its Driver’s Reference Guide, which contains its privacy policy. The Appellant signed it on May 13, 2017, confirming that he had received and read it, and agreed to follow the rules, regulations, procedures and directions within it.^{Footnote 6}

[15] The employer also provided the Commission with a copy of its Rules of Conduct, which prohibit employees from being insubordinate, engaging in disrespectful conduct or disclosing confidential information without authorization. A copy of the Rules of Conduct was signed by the Appellant on May 12, 2014.^{Footnote 7}

[16] The Appellant told the Commission that he was dismissed for keeping phone recordings he had made, and refusing to erase them when the employer told him to.^{Footnote 8}

[17] The Appellant testified that he had a history of disputes with the employer, about a number of issues.

[18] He told the Commission that he had approached the employer in 2014 about tampering with his log books. He said he had contacted Motor Carrier Enforcement, who told him that the practice was illegal. He didn’t file a complaint against the employer, but said that he should have.^{Footnote 9}

[19] The Appellant testified that he also had issues with the employer not paying him properly. The employer had also changed his job to a lower-paying one, when he returned to work in August, 2020, after being on a medical leave.

[20] He said he believed that because of these issues, the employer was trying to put as much stress on him as possible, so that he would quit. He felt that he had to protect himself, so he recorded all of his incoming phone calls.

[21] The Appellant testified that he has an app on his phone that automatically records all of his incoming phone calls, unless the call comes from a number he has identified as a “safe number” on the app. When a phone call ends, he has the option to keep the recording, or send it to the recycle bin. Recordings can still be retrieved after being sent to the recycle bin. He said he records all of his phone calls, because he has “learned the hard way that people lie.” He said “privacy policy or not,” all truck drivers record calls, to have proof of what was said. He added that he also has trouble remembering things and can’t pull over to take notes when he’s driving.

[22] The Appellant testified that while he was at home, on his own time, he received two phone calls. These included a phone call from K.C. (manager of the employer’s turnpike division) on November 17, 2020,^{Footnote 10} and a phone call from J.B. (Director of Operations for the employer) on November 18, 2020.^{Footnote 11} He said that the calls were automatically recorded, and that he sent the recordings to the recycle bin on his phone app, after the calls ended.

[23] The Appellant testified that K.C. called him on November 17, 2020, about drug testing that drivers had to have, to be permitted to drive in the United States. He said he didn’t drive in the United States, so he didn’t want to disclose his medical information. He said that he had contacted Labour Canada and the Privacy Commission about this, and that was why K.C. called him. After the call, he sent the recording of the call to the recycle bin on his phone app.

[24] The Appellant told the Commission that he filed complaints against the employer with the Canadian Human Rights Commission (CHRC) and the Canada Industrial Relations Board (CIRB). He said he believed that the employer was trying to create a toxic work environment to get him to quit, because he had evidence of log book tampering. He said that if brought to the public view, this would be a major embarrassment for the company. He said that that during their recorded conversation, K.C. had asked him if management gave him his route back, “would you get off your mission?”^{Footnote 12}

[25] The Appellant testified that on November 18, 2020, he received a phone call from J.B., who told him that he was being suspended from his job. That call was also recorded on the Appellant’s phone app, and he sent it to the recycle bin.

[26] The Appellant testified that he was called to attend a meeting with R.P. (CEO for the employer) and J.B., on November 24, 2020.^{Footnote 13} The meeting was called because K.C. had reported that the Appellant made the comment “I’m a dangerous man with nothing to lose,” during their phone call on November 17, 2020. The employer asked the Appellant if he was threatening a person, or the company. The employer’s policy about aggressive behaviour and making threats was discussed. The Appellant said he believes that the employer was trying to set him up so it could fire him.

[27] After the meeting on November 24, 2020, R.P. wrote to the Appellant, and told him that to be reinstated from suspension, he had to provide a written statement, clarifying what he meant by his statement that he was “a dangerous man with nothing to lose.” R.P. also said that the Appellant had to stop engaging in uncooperative and disruptive conduct.^{Footnote 14}

[28] The Appellant testified that after he received R.P.’s letter, he retrieved the recordings of his November 17, 2020 phone call with K.C., and his November 18, 2020 phone call with J.B., from the recycle bin on his phone app, and sent them to R.P. by email.^{Footnote 15}

[29] The Appellant testified that R.P. agreed that the recording of his phone call with K.C. contained no evidence of a reason for him to be suspended, so he was placed back on active duty status.^{Footnote 16}

[30] On November 27, 2020, the Appellant submitted a medical report to the employer. He went off work on medical leave, and received short term disability benefits.

[31] On December 3, 2020, L.Y. ( Vice President of Human Resources, and appointed Privacy Officer for the employer) wrote to the Appellant. In her letter, she noted that the Appellant had made recordings of conversations he had with K.C. and J.B., without their prior consent. She said that the employer’s privacy policy says that employees are not allowed to record conversations with another employee without consent. She said that the Appellant recording his conversations with K.C. and J.B. was therefore a breach of the employer’s privacy policy. She said that disclosing the recordings, or any of the information contained in the recordings, would be a further breach of the policy.^{Footnote 17}

[32] L.Y. instructed the Appellant to destroy the recordings of his conversations with K.C. and J.B., as well as any other recordings of conversations that he had made without mutual consent. She instructed him to send her written confirmation that he had done so. She also instructed him to inform her immediately if he had disclosed the recordings or any other confidential information of the employer, its customers, or its employees.^{Footnote 18}

[33] The Appellant wrote to L.Y. on November 23, 2021, while he was still on medical leave, to ask about the employer’s expectations and requirements for his return to work.^{Footnote 19}

[34] L.Y. responded to the Appellant and said that medical information the Appellant had provided would be reviewed to confirm that he was ready to return to work. She added that there remained the outstanding matter of the recordings that the Appellant had made in November 2020. She said that the employer still needed confirmation from the Appellant that those recordings had been or would be destroyed, before he could return to work.^{Footnote 20}

[35] L.Y. wrote to the Appellant on January 7, 2022. She advised the Appellant that in order for him to return to work, he had to:

• destroy all copies of the recordings of his conversations with K.C. and J.B., and any other recordings he had made of conversations with employees or customers of the employer, without their prior consent ;
• confirm in writing that he had destroyed the recordings; and
• confirm whether he had disclosed the recordings or any other confidential information of the employer or its customers or employees.

She said that if the Appellant didn’t comply with these requirements by January 14, 2022, he would be subject to disciplinary action, up to and including termination of his employment.^{Footnote 21}

[36] L.Y. wrote to the Appellant on January 26, 2022. She repeated the employer’s requirements for him to be able to return to work, as set out in her previous letters. She noted that the Appellant had not confirmed that he had deleted the recordings, despite repeated requests to do so. She said that if he didn’t provide confirmation by February 2, 2022, his employment would be terminated.^{Footnote 22}

[37] L.Y. wrote to the Appellant on January 31, 2022. She noted that the Appellant had advised that he was unable to meet the employer’s requests. She asked him to provide the reasons why, and said that if he didn’t do so by February 8, 2022, his employment would be terminated.^{Footnote 23}

[38] The Appellant wrote to L.Y. on February 9, 2022. He said that the had not broken any laws, and that the employer had violated laws and its own policies. He said that he was waiting for the CHRC to review his claim against the employer, which would include reviewing the recordings that the employer wanted him to destroy.^{Footnote 24}

[39] In a February 15, 2022 letter, L.Y. told the Appellant that the employer didn’t want to limit the information he provided to the (CHRC). But once he had submitted the recordings to the CHRC, his continued possession of them was unreasonable, and contrary to the employer’s privacy policy and repeated directions. She instructed the Appellant to confirm that he had destroyed the recordings, and advise as to whether he had disclosed the recordings, or any other confidential information of the employer, other than to the CHRC. She said that if he didn’t do so by February 22, 2023, his employment would be terminated.^{Footnote 25}

[40] In an email to L.Y. sent on February 21, 2022, the Appellant said that the employer should have asked him if he was recording their conversations, before engaging in conversations with him. He said that he would not destroy the recordings, because they were his personal property. He said that asking him to destroy the recordings violated his constitutional rights, and that the employer could not compel him to do so. He said that he intended to file a wrongful dismissal claim with Labour Canada.^{Footnote 26}

[41] In a February 28, 2022 letter, L.Y. told the Appellant that his employment was terminated due to insubordination, because he didn’t follow the employer’s instructions to destroy the recordings he had made, and advise whether he had disclosed the recordings or any other confidential information of the employer. She also advised the Appellant that he had continuing obligations to the employer, regarding confidential information.^{Footnote 27}

[42] I find that the Appellant lost his job because he didn’t follow the employer’s privacy policy, when he recorded conversations he had with other employees without their consent. When the employer repeatedly warned him to destroy the recordings, or he would be dismissed from his job, he refused.

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

[43] I find that the reason for the Appellant’s dismissal is misconduct under the law.

[44] The Act doesn’t say what misconduct means. But case law (decisions from courts and tribunals) shows us how to determine whether the Appellant’s dismissal is misconduct under the Act. It sets out the legal test for misconduct—the questions and criteria to consider when examining the issue of misconduct.

[45] Case law says that to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 28} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 29} The Appellant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.^{Footnote 30}

[46] There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that.^{Footnote 31}

[47] I only have the power to decide questions under the Act. I can’t make any decisions about whether the Appellant has other options under other laws. And it isn’t for me to decide whether his employer wrongfully let him go.^{Footnote 32} I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act.

[48] In a Federal Court of Appeal (FCA) case called McNamara, the Appellant argued that he should get EI benefits because his employer wrongfully let him go.^{Footnote 33} In response, the FCA stated that it has consistently found that in misconduct cases, the issue is whether the employee’s act or omission is misconduct under the Act, not whether they were wrongfully let go.^{Footnote 34}

[49] The FCA also said that, when interpreting and applying the Act, the focus is clearly on the employee’s behaviour, not the employer’s. It pointed out that employees who have been wrongfully let go have other remedies available to them. Those remedies penalize the employer’s behaviour, rather than having taxpayers pay for the employer’s actions through EI benefits.^{Footnote 35}

[50] In a more recent case called Paradis, the Appellant also argued that he was wrongfully let go. The Court relied on McNamara and said that the employer’s behaviour wasn’t relevant when deciding misconduct under the Act.^{Footnote 36}

[51] In a very recent decision, related to non-compliance with an employer’s Covid-19 vaccination policy, the Appellant argued that his questions about the safety and efficacy of the Covid-19 vaccines and the antigen tests were never satisfactorily answered. The Appellant also said that no decision maker had addressed how a person could be forced to take an untested medication or conduct testing when it violates fundamental bodily integrity and amounts to discrimination based on personal medical choices.^{Footnote 37}

[52] In dismissing the case, the Federal Court wrote:

While the Applicant is clearly frustrated that none of the decision-makers have addressed what he sees as the fundamental legal or factual issues that he raises…the key problem with the Applicant’s argument is that he is criticizing decision-makers for failing to deal with a set of questions they are not, by law, permitted to address.^{Footnote 38}

[53] The Court also wrote:

The [Social Security Tribunal’s General Division], and the Appeal Division, have an important, but narrow and specific role to play in the legal system. In this case, that role involved determining why the Applicant was dismissed from his employment, and whether that reason constituted “misconduct.”^{Footnote 39}

[54] So, case law makes it clear that my role is not to look at the employer’s behaviour or policies and determine whether it was right to dismiss the Appellant. Instead, I have to focus on what the Appellant did or failed to do, and whether that amounts to misconduct under the Act.

[55] The Commission has to prove that the Appellant lost his job because of misconduct. The Commission 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 Appellant lost his job because of misconduct.^{Footnote 40}

[56] The Commission says that there was misconduct because:

• the Appellant’s actions of recording the phone conversations he had with other employees went against the employer’s privacy policy;
• his actions were wilful and deliberate;
• he knew that failing to comply with the employer’s requests and warnings to destroy the recordings would result in him losing his job; and
• he refused to destroy the recordings, and lost his job as a result.

[57] The Appellant says that there was no misconduct because:

• the employer’s privacy policy doesn’t apply, because he made the recordings when he was at home, not while he was on company time;
• the recordings are his personal property;
• the recordings contain evidence that the company tampered with his log books, and didn’t pay him correctly, so he kept them to protect himself from the employer; and
• the employer was trying to get him to quit, or find a reason to fire him.

[58] I find that the Appellant deliberately recorded conversations he had with other employees, even though he knew that the employer had a privacy policy that said he couldn’t record other employees without their consent. He testified that he was “fully aware” that he wasn’t allowed to record conversations with other employees, but because people lie, he recorded all of his calls. That was wilfulness.

[59] The Appellant submitted additional recordings of conversations he had with other employees.^{Footnote 41} He testified that he knowingly violated the employer’s privacy policy by recording those conversations, which took place on company time. But he argues that he didn’t violate the policy when he recorded his conversations with K.C. and J.B. in November, 2020, because he was at home, on his own time, when he recorded the calls. I don’t accept that argument. This is because the employer’s privacy policy says that it applies to “any communication with any employee, Officer, Director, or agent of the employer.” It doesn’t say that it only applies to conversations that take place during work hours. I find it reasonable to conclude that the the policy prohibits recording any conversation that takes place without the consent of all parties to the conversation, regardless of whether the conversation takes place during work hours.

[60] I find that the Appellant knew that recording conversations with other employees without their consent could cause him to lose his job.

[61] The employer wrote to the Appellant on multiple occasions, advising him that he had breached its privacy policy by recording his conversations with K.C. and J.B. The employer instructed him to destroy the recordings, and any other recordings he had made of conversations he had with other employees, and confirm in writing that he had done so. The employer warned him that if he didn’t, he would be terminated from his employment.

[62] The Appellant confirmed in his testimony that he knew he could lose his job when he refused to delete the recordings he had made of his conversations with K.C. and J.B. He said that he wasn’t surprised when the employer dismissed him. He said he was surprised that he wasn’t dismissed sooner.

[63] I find that the Commission has proven that there was misconduct because:

• the employer had a privacy policy that said employees could not record any communication with any employee, Officer, Director, or agent of the employer without the express consent of all parties to the conversation;
• the Appellant knew about the employer’s privacy policy, and that he wasn’t allowed to record conversations with other employees without their consent;
• the Appellant recorded conversations he had with K.C. and J.B., as well as with other employees;
• the employer repeatedly instructed the Appellant to destroy the recordings; and
• the Appellant refused to destroy the recordings, and was dismissed from his job as a result.

So, did the Appellant lose his job because of misconduct?

[64] Based on my findings above, I find that the Appellant lost his job because of misconduct.

[65] This is because the Appellant’s actions led to his dismissal. He acted deliberately. He knew that refusing to destroy the recordings would cause him to lose his job.

Conclusion

[66] The Commission has proven that the Appellant lost his job because of misconduct. Because of this, the Appellant is not entitled to receive EI benefits.

[67] This means that the appeal is dismissed.