Employment Insurance (EI)

Decision

[1] I am dismissing N. H’s appeal because he hasn’t shown the General Division made an error.

[2] This means the General Division’s decision stands.

Overview

[3] I will call N. H. the Claimant because he made a claim for EI regular benefits.

[4] He worked in a call centre for a global retail chain. The employer’s termination letter says a review of recent calls revealed highly problematic behaviours towards customers. And his refusal to align his behaviour with expectations and his blatant disrespect of customers is unacceptable and constitutes gross fault. So, it terminated the Claimant for just and sufficient cause.

[5] The Canada Employment Insurance Commission (Commission) decided he lost his job for a reason that counts as misconduct under the Employment Insurance Act (EI Act). So, it disqualified him from getting benefits. He asked the Commission to reconsider that decision. The Commission maintained its decision.

[6] He appealed to this Tribunal’s General Division. The General Division dismissed his appeal. It decided the Commission proved the Claimant lost his job because of misconduct.

[7] He appealed to the Appeal Division. He argues the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction. He also says it made mistakes with the evidence. He says I should make the decision the General Division should have made. The Commission argues the General Division didn’t make any errors. So, it says I should dismiss his appeal.

Issues

[8] There are four issues in this appeal:

• Was the General Division biased, did it prejudge the appeal, or did it ignore an issue it had to decide?
• Did the General Division make an important factual error by ignoring or misunderstanding the Claimant’s evidence, or accepting the Commission’s evidence?
• Did the General Division improperly rely on the Claimant’s incompetence when it decided his conduct was misconduct under the EI Act?
• If the General Division made an error, how should I remedy (fix) the error?

Analysis

[9] I am dismissing the Claimant’s appeal. He hasn’t proven the General Division made an error.

The Appeal Division’s role

[10] The Appeal Division’s role is different than the General Division’s role. The law allows me to step in and fix a General Division decision where a claimant shows the General Division

• used an unfair process
• decided an issue it should not have decided, or didn’t decide an issue it had to decide (in legal terms, acted beyond or refused to exercise its jurisdiction)
• based its decision on a legal error
• based its decision on an important factual error.^{Footnote 1}

[11] If the Claimant doesn’t show the General Division made one of these errors, I have to dismiss his appeal.

The law the General Division had to apply—misconduct under the EI Act

[12] The law disqualifies a person from getting EI benefits it they lose their job because of their misconduct.^{Footnote 2} In misconduct appeals, the General Division has to decide two things

• the reason the person lost their job
• whether the Commission has proven that reason counts as misconduct under the EI Act^{Footnote 3}

[13] To be misconduct, the person’s conduct has to be wilful (conscious, deliberate, or intentional) or reckless to the point of being wilful.^{Footnote 4} This means the Commission has to prove the person knew or should have known their conduct breached a duty they owed to their employer. And the Commission has to show the person knew or should have known they could lose their job for that conduct.^{Footnote 5}

[14] A person’s inability to fulfil a condition of employment isn’t necessarily misconduct.^{Footnote 6} For example, poor job performance or incompetence—because a person doesn’t have the skills or ability needed to do the job properly—doesn’t count as misconduct.

The General Division wasn’t biased, didn’t prejudge the appeal, and didn’t ignore an issue it had to decide

[15] The General Division makes a jurisdictional error where it doesn’t decide an issue it has to decide.

[16] The Claimant writes it’s a “joke” that the Commission says the “Tribunal does not have the expertise or jurisdiction to decide whether the claimant was unjustly terminated, this is well beyond the scope of the Tribunal’s expertise in EI matters and lies outside its jurisdiction.”^{Footnote 7}

[17] Here is what I understand the Claimant is arguing. His employer unjustly dismissed him. The General Division should have decided his EI appeal in his favour because his employer unjustly dismissed him.

[18] The General Division didn’t make a jurisdictional error. It could not decide whether his employer wrongfully dismissed him or base its decision on this issue.^{Footnote 8}

[19] The General Division fails to observe a principle of natural justice where it doesn’t use a fair process to reach its decision. This includes where the Tribunal member is biased or has prejudged the case.

[20] At the hearing the Claimant argued the General Division member, “was maybe a little bit biased.” He says the member raised his voice to the Claimant during the hearing. He says some of the evidence the member referred to was not true. And he says the member made his decision without deeply going into the facts.

[21] The legal test to show a tribunal member was biased is difficult to meet. The member is presumed to be impartial. The Claimant has to show that a reasonably informed person would think, in the circumstances, the decision-maker would not decide fairly.^{Footnote 9}

[22] The Claimant hasn’t proven the General Division was biased or otherwise failed to observe a principle of natural justice. I listened to the General Division hearing and I reviewed the documents the parties sent to the General Division and the General Division decision.

[23] There is nothing to show the General Division member was biased or prejudged the case. It gave both parties a full and fair opportunity to present their evidence and arguments.

[24] The General Division had to weigh the evidence then decide which facts were more likely than not true. Where the Commission’s evidence went against the Claimant’s evidence, it had to decide what evidence it preferred and give reasons why. This is what it did at paragraphs 35, 44, 45, 46 and 47. So the way the General Division handled the evidence doesn’t show it was biased or prejudged the appeal.

[25] To summarize this section, the Claimant hasn’t proven the General Division made a jurisdictional error or otherwise failed to observe a principle of natural justice.

The General Division didn’t make an important factual error

[26] The General Division makes an important factual error if it bases its decision on a factual finding it made by ignoring, misunderstanding, or mistaking the evidence.^{Footnote 10} In other words, the Claimant has to show the evidence goes squarely against or doesn’t support a factual finding the General Division made.^{Footnote 11}

[27] I can presume the General Division reviewed all the evidence—in its decision it doesn’t have to refer to every piece of evidence.^{Footnote 12} I can’t reweigh the evidence.^{Footnote 13} And I can’t find an error only because I would have weighed the evidence differently or come to a different decision based on the evidence.

[28] The Claimant focused his written and oral arguments on the evidence and facts as he sees them. He challenged his employer’s evidence, conduct, and competence. He repeatedly challenged the Commission’s evidence, characterization of the facts, and arguments. He says they are “blatant lies”, “offensive and hurtful”, and “very unfair and hurtful and not justified”. And he was “very hurt” the General Division decision went against him.

[29] At the Appeal Division hearing the Claimant argued the General Division

• came to its decision without deeply going into the facts
• should have looked at his situation in a different light
• didn’t have all the evidence on file, specifically, a recording of the November 28, 2023 customer call
• didn’t pay attention to the fact an email about that customer call was written by a new employee who didn’t have analytical skills, and the email said the call was 45 minutes long and he says it was only five minutes long^{Footnote 14}
• ignored his argument he should be entitled to benefits because of the economy and prices being almost three times as expensive

[30] The Commission argues the General decision is based on the evidence, and is intelligible, transparent and falls within the realm of reasonableness.

[31] At paragraphs 30 and 31, the General Division addresses the email about the November 28 customer call and reviews the Claimant’s evidence about this. The General Division preferred the Commission’s (and his employer’s) evidence, and explains why, at paragraph 35. So, it didn’t ignore the email or the Claimant’s evidence about it, or the November 28 customer call.

[32] The General Division didn’t have to consider what the Claimant said about the economy and prices. That argument wasn’t relevant to the legal issue it had to decide—whether he was dismissed for a reason that counts as misconduct under the EI Act.

[33] I don’t accept the rest of the Claimant’s arguments that the General Division made an error in how it handled the evidence. He hasn’t pointed to any specific factual errors the General Division made. He is arguing—in general terms—that he disagrees with the General Division’s weighing of the evidence and the outcome in his case. But the law (summarized above) says I can’t reweigh the evidence or allow his appeal because I might have decided the case differently based on the evidence.

[34] So, the Claimant hasn’t shown the General Division ignored, mistook, or misunderstood the evidence. This means it didn’t make an important factual error.

The General Division didn’t rely on the Claimant’s incompetence when it decided his conduct was misconduct

[35] The Leave to Appeal decision says the General Division relied on the employer’s Global Competency Profile and the employer’s Performance Improvement Action Plan for the Claimant (the performance documents).^{Footnote 15} So the Appeal Division decided there was an arguable case the General Division

• made an error of fact by improperly relying on evidence of incompetence
• made an error of law if it interpreted misconduct under the EI Act to include actions that are only incompetence

[36] The Appeal Division uses the “arguable case” test when it decides whether to give permission to appeal. This is an easy test to meet. To be successful now, the Claimant has to prove the General Division made an error. This is a much more difficult test to meet.

[37] The Claimant didn’t make any arguments about errors based on the Leave to Appeal decision. He said his employer lied on the performance documents. And he refused to sign the documents because of that.

[38] The Commission agreed the General Division relied on the Performance Improvement Action Plan when it decided the misconduct issue.^{Footnote 16} But it argues the performance documents show the employer was critical of the Claimant’s attitude and behaviour and disciplined him for these. It argues the General Division found the Claimant lost his job because over the course of nearly three years he was repeatedly rude, aggressive, and disrespectful with customers. Finally, the Commission says this came to a head in the November 28 customer call where he behaved egregiously when he told a customer to “shut up.”

[39] I agree with the Commission. The General Division didn’t base its decision on the Claimant’s poor job performance—in other words, his incompetence. It is important to look beyond the documents’ titles and focus on the words the employer used in the documents to describe the Claimant’s conduct and its responses. This is what the General Division did.

[40] The General Division weighed the evidence and then gave its reasons for preferring the Commission’s evidence (paragraph 44). Then in paragraph 47, the General Division

• refers to the employer’s policy of respectfully dealing with customers, which the Claimant knew or ought to have known about
• includes and highlights in bold two parts of the Claimant’s Performance Improvement Action Plan that say may result in further disciplinary action
• finds that the Claimant knew what could happen if he went against the policy
• ends the paragraph by referring to the November 28 call—and the Claimant’s testimony that he admitted saying shut up to a customer

[41] So, the General Division didn’t make an important factual error. It didn’t find the Claimant’s employer dismissed him for incompetence—in whole or in part. So, it didn’t base its decision on a finding of incompetence.

[42] The Commission also argued the General Division correctly applied the legal test for misconduct.^{Footnote 17} In other words, it didn’t misinterpret the legal test to mean a finding of misconduct can be based on incompetence.

[43] I agree with the Commission. The General Division correctly set out the legal test it had to apply (paragraphs 37 to 40). And after it weighed the evidence, it applied that test to its findings of fact (paragraph 47).

[44] The General Division’s findings of fact and its decision are supported by the evidence of misconduct. The preponderance of the evidence the General Division accepted showed the Claimant’s behaviour and conduct over a prolonged period of time breached a duty he owed his employer. It found he was disciplined for that conduct. And it relied on the last, egregious example of that conduct—the November 28 customer call the employer acted on to dismiss the Claimant.

[45] To summarize this section, the General Division didn’t consider incompetence when it applied the legal test for misconduct. And it didn’t base its decision on a factual finding of conduct that included incompetence.

Conclusion

[46] The Claimant hasn’t proven the General Division made an error. So, I have to dismiss his appeal. And the General Division stands unchanged.