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 disqualified from receiving Employment Insurance (EI) benefits.^{Footnote 1}

Overview

[3] The Appellant lost his job as a tire and lube technician at a car dealership. The Appellant’s employer said that he was let go because his driver’s licence was suspended, and it was a requirement of his job to have a valid licence.

[4] Although the Appellant doesn’t dispute that this happened, he says that it isn’t the real reason why the employer let him go. The Appellant says that the employer actually let him go because the new owners were restructuring the business.

[5] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant lost his job because of misconduct. Because of this, the Commission decided that the Appellant is disqualified from receiving EI benefits.

Issue

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

Analysis

[7] To answer the question whether the Appellant lost his job because of misconduct, I have to decide two things. First, I have to determine why the Appellant lost his job. Then, I have to determine whether the law considers that reason to be misconduct.

Why did the Appellant lose his job?

[8] I find that the Appellant lost his job because his driver’s licence was suspended, and it was a job requirement.

[9] The Appellant and the Commission don’t agree on why the Appellant lost his job. The Commission says that the reason the employer gave is the real reason for the dismissal. The employer told the Commission that the Appellant was dismissed because his licence was suspended for one year. It tried to accommodate the Appellant with alternative duties that didn’t require driving, but it didn’t work out.

[10] The employer says that it only learned about the Appellant’s suspension on October 23, 2023, after conducting a driver’s licence check. It tried to accommodate the Appellant’s loss of his licence for one week but concluded it wasn’t working out and terminated his employment.^{Footnote 2} It explained that it terminated him on October 30, 3023, without alleging cause because it didn’t know why his licence was suspended and it was easier to do this.^{Footnote 3}

[11] The Appellant disagrees. The Appellant says that the real reason he lost his job is that new owners purchased the dealership in September 2023. The new owners made changes in the dealership and let some staff go including the Appellant. He says he was dismissed without cause as written on his termination letter and record of employment.^{Footnote 4}

[12] He denies that the suspension of his driver’s licence on August 4, 2023, prevented him from performing his job duties. He says that the suspension only prohibited him from driving on public roads. It didn’t apply to private property such as the dealership.^{Footnote 5}

[13] He says he told his supervisor about the suspension on August 7, 2023, and was permitted to keep working without restriction until October when he was put on modified duties for several weeks.

[14] I find that the Appellant was dismissed because his driver’s licence was suspended. I prefer the evidence of the employer that it dismissed the Appellant because the Appellant’s licence was suspended because:

• The parties agree that the Appellant’s licence was suspended.
• The parties agree that a valid driver’s licence is a requirement of the Appellant’s job.
• The employer’s evidence was consistent that it only discovered the suspension on October 23, 2023, and tried to accommodate the Appellant for one week.^{Footnote 6}
• The Appellant was terminated on October 30, 2023.^{Footnote 7}
• The Appellant said on his application for EI benefits that he was dismissed because he lost his driving licence.^{Footnote 8}
• His application said he required a driver’s licence to perform his job.^{Footnote 9}
• His application said the employer tried to accommodate him with duties that didn’t require driving, but there wasn’t enough work without a valid licence.^{Footnote 10}
• His application said that he had little to no work to do without a valid licence.^{Footnote 11}
• The employer was hiring additional technicians.
• The Appellant’s evidence about whether and when he told his employer about his licence suspension was inconsistent.^{Footnote 12}
• The Appellant’s evidence that he was on modified duties for about one month before he was terminated is inconsistent with the documents provided by the employer.^{Footnote 13}

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

[15] The reason for the Appellant’s dismissal is misconduct under the law.

[16] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 14} Misconduct also includes conduct that is so reckless that it’s almost wilful.^{Footnote 15} 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 16}

[17] 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 17}

[18] 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’s more likely than not that the Appellant lost his job because of misconduct.^{Footnote 18}

[19] The Commission says that there was misconduct because the Appellant’s actions were wilful. He understood that driving under the influence would put his licence and thereby his job in jeopardy. It argues that the fact that the employer accommodated the Appellant for a short period of time doesn’t change the fact that his actions were misconduct under the Employment Insurance Act (Act).

[20] The Appellant says that there was no misconduct because his termination letter says he was dismissed without cause. The employer allowed him to work without modification of his duties for several months after it had been advised of his licence suspension. He says he was let go because of a restructuring by the new owners. As noted above he also argues that his termination letter and record of employment say he was dismissed without cause.

[21] The letter of termination signed by the Appellant stating that he was dismissed without cause is not determinative of the issue before this Tribunal. I find the employer’s explanation why it dismissed the Appellant without cause credible.^{Footnote 19} The termination letter doesn’t contradict what the employer told the Commission during its investigation. This means that I must assess the evidence and come to a decision whether the actions amount to misconduct under the Act.^{Footnote 20}

[22] I find that the Commission has proven that there was misconduct, because the Appellant’s conduct in driving while over the legal blood alcohol limit was both wilful and reckless.^{Footnote 21} It led to the suspension of his driver’s licence. Holding a valid driver’s licence was a requirement of the Appellant’s position.

[23] The case law is clear that where an employee is required to hold a valid driver’s licence, the loss of the licence because of the employee’s wrongful act is misconduct.^{Footnote 22}

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

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

Conclusion

[25] The Commission has proven that the Appellant lost his job because of misconduct. Because of this, the Appellant is disqualified from receiving EI benefits.

[26] This means that the appeal is dismissed.