Employment Insurance (EI)

Decision

[1] I am allowing the appeal. The General Division made errors of fact and I have made the decision that it should have made. The Claimant is not disqualified because he was not dismissed for misconduct.

Overview

[2] A. R. is the Appellant. I will call him the Claimant because this appeal concerns his claim for Employment Insurance (EI) benefits.

[3] The Respondent, the Canada Employment Insurance Commission (Commission) denied his claim for benefits because it found that the Claimant was dismissed for his misconduct. The Claimant disagreed and asked the Commission to reconsider, but the Commission would not change its decision. He appealed to the General Division of the Social Security Tribunal. When the General Division dismissed his appeal, he appealed to the Appeal Division.

[4] I am allowing the appeal. The General Division made important errors of fact. I have made the decision that the General Division should have made. I find that the Claimant was not dismissed for misconduct so he should not have been disqualified from receiving benefits.

Issues

[5] The issues in this appeal are:

1. a) Did the General Division make an important error of fact by making a finding against the Claimant’s credibility
1. i. that does not follow from the evidence?
2. ii. that fails to consider all the evidence?
2. b) Did the General Division make an important error of fact by preferring the Commission’s evidence without regard to its contradictions?
3. c) Did the General Division make an important error of fact by basing a finding that the Claimant violated employer policy on the employer’s opinion?
4. d) If the General Division made errors, how should they be fixed?

Analysis

[6] The Appeal Division may only consider errors that fall within one of the following grounds of appeal:

1. a) The General Division hearing process was not fair in some way.
2. b) The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide (error of jurisdiction).
3. c) The General Division made an error of law when making its decision.
4. d) The General Division based its decision on an important error of fact.^{Footnote 1}

Important error of fact

[7] For a claimant to be disqualified for misconduct, the conduct alleged to be misconduct must be an operative cause of the conduct, and it must qualify as “misconduct” under the law.

[8] To find that that the alleged conduct was misconduct, the Commission must prove the following:

1. 1. That the conduct was willful, or so reckless as to approach willfulness 
2. 2. That the Claimant knew, or ought to have known,
• his conduct was such as to impair the performance of a duty that he owed to his employer
• his dismissal was a real possibility as a result of the breach^{Footnote 2}

[9] The General Division correctly set out the legal test.^{Footnote 3} It also summarized the parties’ positions, and it made findings of fact.

[10] Unfortunately, its reasons are not as clear as they could be. The decision does not tie its findings of fact to the required elements of the test. This means that I must infer that it considered and applied the test based on the individual findings of fact.

Unsupported finding against the Claimant’s credibility

[11] The General Division found that the employer dismissed the Claimant because he breached the employer’s safety policies and protocols. It accepted that the breach of policy for which the Claimant dismissed was that he took a box of gloves in and out of a resident’s room that had an infection warning notice (the “infectious room”).^{Footnote 4}

[12] The General Division found that the Appellant’s testimony “about the employer’s policies and protocols” wasn’t credible. In doing so, t relied on the fact that the Claimant had received prior warnings and suspensions.^{Footnote 5} Unfortunately, the General Division was not explicit about what testimony in particular it did not consider credible.

[13] The substance of the alleged misconduct was that the Claimant took a box of gloves in and out of an infectious room in a manner that was contrary to policy. Therefore, I will assume that the General Division rejected the credibility of that part of the Claimant’s evidence that touched on this conduct, and what he knew of the employer’s policies for this conduct.

[14] The gist of the General Division’s credibility finding is that the Claimant cannot be believed when he says that the employer has no policy for what he did, or that he was unaware of such a policy’s policy.

[15] According to the General Division’s summary of the related evidence, the Claimant said that he understood that “prior warnings about noncompliance with safety policies and protocols were reminders,” that he was “complying with the safety polices by disinfecting the washroom surface,” and that he had not been “previously corrected for his practice of taking a box of gloves into residents’ rooms.”

[16] When the General Division rejected the credibility of this evidence, it did not specify the “prior warnings and suspensions,” on which it relied. It did not explain how the warnings contributed to its rejection of what the Claimant said about his knowledge of employer policies bearing on his alleged misconduct. This is important because the only documented warnings in the file were the written warnings about being late for work or no-shows.

[17] Aside from the written warnings, the Claimant admitted that the employer verbally warned him for “gloves.^{Footnote 6} However, this warning related to an incident where he did not wear gloves as required by the employer, which is different from the conduct for which the employer dismissed him.^{Footnote 7}

[18] It is not obvious why some previous warning or warnings about wearing gloves should cause the General Division to question what the Claimant said about his knowledge of other policies. The fact that he received warnings about one kind of conduct does not mean he should know about a policy for another kind of conduct. The warning suggests only that the Claimant would know about the glove policy. It does not mean he would know about all the other policies. It does not mean that he should know he should not take items in and out of an infectious room.

[19] The General Division made an important error of fact. Its finding against the Claimant’s credibility does not follow from the evidence. Alternatively, the General Division made an error of law because it did not adequately explain how its credibility finding follows from the evidence.

[20] I recognize that the General Division gave a second reason for rejecting the credibility of the Claimant’s evidence when it came to how he did not believe his conduct was contrary to the employer’s policies. It said that the Claimant’s evidence was ‘inconsistent.’

[21] I cannot parse out the degree to which the inconsistency factored into the General Division’s credibility assessment, as opposed to the ‘prior warnings and suspensions.’ It is enough that I have found that at least part of the General Division’s justification was in error.

[22] Having said that, I note that it is again unclear how the cited inconsistency should have caused the General Division to disbelieve the Claimant’s evidence. The General Division did not find that the Claimant’s evidence was not reliable or credible generally. It identified one inconsistency, which was related to the fact that the Claimant corrected himself on the date that he received a verbal warning for how he used gloves.

[23] The Claimant may have been uncertain or imprecise about when he received his warning about wearing gloves. However, the General Division does not explain how this undermines what he says he knew about other infection control policies.

[24] The Claimant asserted that he did not know that the employer would object to the manner in which he handled the box of gloves in the resident’s room. The warning the Claimant received for when and how he used gloves personally does not support a finding that he cannot be believed when he says he did not know taking the box in and out of the room was against policy.

Failure to consider contradictions in the evidence of suspensions

[25] Presumably, the General Division was referring to more than just the verbal warning about glove-wearing, when it spoke of ‘prior warnings and suspensions.’

[26] The employer acknowledged that it had suspended the Claimant for not showing up for work and for lateness on September 9, 2022. However, it also described the September 9 suspension as one that was related to a failure to follow IPAC rules and protocols on hand hygiene. It said the September 22, 2022, suspension was for lateness, but that it was also for the Claimant’s ‘conduct.’ The employer told the Commission that the Claimant’s suspensions were ‘all related to the reasons for his termination from safety issues regarding infection control and prevention, proper hygiene practices and beach of the code of conduct and the resident’s bill of rights and breach of trust.’^{Footnote 8}

[27] The General Division made an important error of fact. It chose to accept and rely on the evidence, ‘of the Commission.’ The Commission’s evidence in this case comes from the employer’s statements and documents. This includes what the employer said about the nature of past suspensions. When the General Division preferred the Commission’s evidence, it failed to consider that some of the employer’s statements are inconsistent with other file evidence.

[28] The employer’s statements are contradicted by the actual suspension reports. Both suspension reports identify the reason for the suspension as lateness or ‘no-show.’ Neither report says anything about the Claimant having breached any safety or hygiene rule or policy.^{Footnote 9} What the employer said about how the Claimant’s suspensions related to safety or infection control or hygiene is apparently incorrect. There is certainly nothing in the suspension reports to suggest that the Claimant was warned or disciplined for these concerns, or for anything like the ‘infectious room’ conduct for which the employer dismissed him.

Reliance on employer’s opinion

[29] The employer told the Commission that the Claimant’s conduct breached the Code of Conduct and the Residents’ Bill of Rights.^{Footnote 10} The Commission asked the employer to provide these documents and it provided one document entitled, ‘Code of Business Conduct and Ethics’ Residents’ Bill of Rights” and another document entitled “Residents’ Bill of Rights.”

[30] The relevant section of the Code of Conduct says this: “Team Members have a responsibility to maintain a safe workplace by following health and safety rules and practices…” The Residents’ Bill of Rights says this, “Every Resident had the right to live in a safe and clean environment.” Neither document reveals the nature of the “health and safety rules and practices” or identifies where they may be located. Neither document addresses the Claimant’s conduct specifically. They do not prove that the Claimant’s conduct breached their terms.

[31] The Claimant’s termination letter also said that he breached “Infection Control and Prevention—XXII-G-10.40.” This reference is obscure and meaningless to me. I expect that it means something, but neither the Commission nor the employer has explained what that meaning is. The Commission has not provided the source of the reference, and there are no instructions given on how to locate it.

[32] In other words, the only actual evidence that the Claimant breached a rule or policy of the employer by taking a box of gloves in and out of an infectious room is the employer’s say-so.

[33] The Commission says that the General Division should be able to rely on a statement from the employer that the Claimant breached its policy. It cites GD, a decision of this Tribunal, as well as Morris and Norman, decisions of the Federal Court of Appeal.^{Footnote 11}

[34] I do not know why the Commission has cited the Norman decision. I fail to see how the Norman case is relevant.^{Footnote 12}

[35] In the Tribunal’s GD decision, the claimant was dismissed for refusing to get vaccinated. She argued that she was not aware of the policy and said that the employer had not provided a copy of the policy. The policy in question was a policy requiring employees to be vaccinated.

[36] The Commission is citing GD to support its argument that the employer’s actual policy need not be in evidence. I agree with the Commission. There are circumstances where it would not be necessary to have the actual policy in evidence. However, I do not agree that this means the employer’s opinion that a claimant breached its policy is sufficient.

[37] The vaccination policy in GD required little interpretation. By not getting vaccinated, the claimant in GD violated a policy requiring her to get vaccinated. All of the employees were aware of the policy. It was notorious.

[38] In this case, it is not clear that a specific policy even exists, which the Claimant would recognize as applying to his particular conduct. The employer was asked for its policies, and it produced some general policy documents by which employees are obligated to act in a “safe” manner. The General Division found as fact that the Claimant believed he was keeping residents safe in the manner in which he used disinfectants and sanitizers.

[39] If a specific policy or protocol existed that addressed infection control and prohibited taking items in and out of an infectious room, the Claimant’s belief that he was complying with that policy or protocol may not have been reasonable. But the answer to this question would necessarily turn on what the policy actually says.

[40] Morris states that the Tribunal has jurisdiction to evaluate and weigh the evidence, including hearsay evidence, and that it is not unfair for it to do so.^{Footnote 13} I again agree with the Commission. The General Division may accept hearsay evidence, even if it cannot give it the same weight as it would if it were not hearsay.

[41] However, the issue is not that the employer’s evidence is hearsay. It is that it is not useful. If the employer identified the policy and quoted what the policy actually says, or even if it had done a reasonable job of paraphrasing the policy, the employer’s evidence would still be hearsay, but it would have some value.

[42] In this case, we have none of that. We have only the employer’s opinion that the Claimant’s actions violated its policy, and a cryptic reference to something—a standard or protocol perhaps—that the Claimant may have breached. Conversely, the Claimant’s opinion was that his conduct did not breach any employer policy of which he was aware.

[43] The General Division had to decide whether the Claimant knew or ought to have known he was violating the policy. This is an objective test. That means that it is irrelevant that the employer may believe its policy covers the Claimant’s conduct. It is also irrelevant that the employer believes the Claimant understood (or should have understood) that he was violating the policy and that the employer might dismiss him as a result (at least without objective evidence by which the General Division could evaluate the basis for that belief).

[44] The General Division’s job was to evaluate whether a reasonable person in the Claimant’s circumstances would consider that they were violating the policy. The General Division could not determine this without reasonably reliable evidence of what the policy actually says.

[45] The Federal Court of Appeal has confirmed that the General Division cannot rely on the employer’s opinion that the Claimant’s conduct was misconduct.^{Footnote 14} Relying on the Employer’s opinion that the Claimant’s conduct violated the employer policy, without explaining the policy, amounts to the same thing.

[46] The General Division made an error of fact because its finding that the Claimant’s conduct breached the employer’s policy relied on the employer’s opinion.

Summary

[47] I have found that the General Division made important errors of fact. That means I have to decide what I should do to fix those errors.

Remedy

[48] I have the power to send the matter back to the General Division for reconsideration, and I also have the power to make the decision that the General Division should have made. In making the decision, the General Division should have made, I may decide any question of law or fact necessary to my decision.^{Footnote 15}

[49] Both the Claimant and the Commission suggested that I could make the decision the General Division could have made—if I found an error. The Commission said that I should return the matter to the General Division if I found that the missing policy was a procedural fairness issue.

[50] This decision does not depend on an error of procedural fairness. I have found errors of fact.

[51] Whatever lies behind the employer’s allegation that the Claimant breached “Infection Control and Prevention—XXII-G-10.40,” the Commission did not provide evidence of its substance. Nor did it offer the text of any policy which prohibits the Claimant’s specific conduct either alone, or by reference to another standard or protocol in evidence. I would have preferred to have this evidence.

[52] However, I agree with the parties that I should make the decision that the General Division should have made. The fact that there is no specific evidence of the policy (that the Claimant is said to have violated) does not mean that the record is incomplete. It only makes it difficult for the Commission to meet its burden of proof.

Why was the Claimant dismissed?

[53] The General Division found that the employer dismissed the Claimant because he took a box of gloves in and out of an infectious room. I agree.

[54] I recognize that there is also evidence that the Claimant had gloves in his pocket at the same time (which may have been contrary to some policy). However, the issue is the same: He was dismissed for taking items in and out of an infectious room.

[55] When the Commission asked the employer what led to the Claimant’s dismissal, it said that gloves should not be worn in hallways or room to room, and that there are protocols for cleaning hands. It also said that the Claimant brought a box of gloves into a resident’s room that was infected and then brought it into a room that was not.^{Footnote 16}

[56] The employer talked about the final incident and about how it had video that the Claimant went into an infectious room with the box of gloves. It also said that they don’t know what he did inside, and whether he washed his hands or not. The employer said that the Claimant admitted to having washed his hands with his gloves on, which was contrary to policy.^{Footnote 17}

[57] Likewise, the Claimant believed his hand hygiene was part of the reason for his dismissal.^{Footnote 18} There was also evidence that he texted his neighbour, saying that that the employer terminated him for not cleaning his hands properly.^{Footnote 19} However, it is not clear whether the Claimant was discussing what he had done in connection with the final incident. He could as easily have been describing the admitted incident or incidents that had occurred earlier, or referring to his warnings. I accept that he believed these other concerns contributed to the employer’s decision to dismiss him.

[58] However, the Commission understood that the employer dismissed the Claimant for going in and out of the infectious room with the box of gloves, and the Claimant agreed with this characterization.^{Footnote 20}

[59] I find that it is more likely than not that the employer would not have dismissed the Claimant when it did if the Claimant had not taken the box of gloves in and out of the infectious room. I accept that the employer dismissed the Claimant because he took a box of gloves into an infectious room and took them out again. It would be rightly concerned if the Claimant’s actions had the potential to spread disease.

[60] It is apparent that the employer had other issues with the Claimant’s hand hygiene and with his work attendance as well. The employer had responded to those incidents with warnings or suspensions. However, those warnings and suspensions were unrelated to the final incident for which the employer dismissed him. There is insufficient evidence that the Claimant repeated any of the behaviour for which he had been warned - n connection with the final incident.

[61] This means that the Commission must show that the Claimant’s actions were misconduct when he took a box of gloves in and out of an infectious room. The Commission has the burden of proof.

Was the Claimant’s conduct “misconduct”?

[62] There is nothing about taking a box of gloves in and out of an infectious room that is inherently “wrong.” By this I mean that I cannot presume (absent policies or protocols) that the Claimant should have known that what he did breached his duty of safety.

[63] The Claimant testified that he thought he was being safe in the manner in which he sanitized and disinfected surfaces. The General Division accepted this. For all I know, his actions effectively and adequately mitigated the risk of contagion. However, there is no evidence in the record on which I could possibly assess whether it was reasonable for the Claimant to believe what he did was safe or unsafe.

[64] Therefore, I could only find that Claimant’s conduct was “misconduct” if it were linked to a violation of a policy, rule, or direction of the employer. I would have to find that he knew, or should have known, that his conduct was contrary to some such policy, rule, or direction.

[65] A violation of an employer policy can be misconduct in itself, if the Commission can prove it was deliberate.^{Footnote 21} It would also have to prove that the Claimant knew or ought to have known he could be dismissed as a result.^{Footnote 22}

[66] The Claimant testified that he thought he conducted himself in the infectious room in compliance with the employer’s policies. The employer told the Commission that the Claimant’s conduct was against its policy. It said that the Claimant had had “orientation and training,” and that it had previously warned him. It said that the Claimant “knew” that he was violating the policy.

[67] The Claimant’s prior warnings and training could be relevant to whether he was breaching the employer’s policy intentionally or deliberately.

Prior warnings

[68] I accept that the employer warned the Claimant at least once about the requirement that he wear gloves. I also accept that it warned him about being late for work or not showing up.

[69] In terms of warnings, the employer said that the Claimant had been disciplined for “the same reasons.” If “the same reasons” means that he had taken a box of gloves in and out of a resident’s room on a previous occasion, then this would suggest he should know better than to do it again.

[70] However, I find that it was more likely a reference to his previous hand hygiene warning. I say this because the employer spoke in more detail later in the same conversation. It referred specifically to washing and cleaning hands, and hand hygiene, but not to safety protocols for infectious rooms.^{Footnote 23} I also note that some of the employer’s evidence is contradicted by documents in the file. The employer said that all of the Claimant’s suspensions were related to safety issues regarding safety control and infection. It referred to two suspensions by their dates. The actual suspension reports are on file, and neither mention safety nor infection control. The Claimant’s suspensions were for performance issues: lateness and no-shows.

[71] The Claimant has received warnings, but I do not accept that the warnings were for the conduct for which he was dismissed. As far as I can tell, the prior warnings did not require, suggest, or imply that he could not take a box of gloves in and out of an infectious room. They do not help the Commission to prove that the Claimant ought to have known his conduct would be in violation of am employer policy.

[72] The prior warnings do not support a finding that the Claimant knew or ought to have known he was breaching the employer’s policy.

Prior training

[73] I accept that the Claimant received orientation and training at some point. There is no evidence of the content of the Claimant’s orientation and training, However, I accept that it likely involved safety protocols given the Claimant’s position.

[74] However, there is no evidence that the Claimant’s training addressed the conduct for which he was dismissed. The assertion that the Claimant had “safety” training does not mean that his training covered protocols to prevent the spread of infectious diseases. Nor does it mean that conduct such as the Claimant’s would be contrary to those protocols. It does not help to show that he should have known his actions were unsafe.

[75] The mere fact that the Claimant had received training does not support a finding that the Claimant knew or ought to have known his actions breached the employer’s policy.

The policy itself

[76] I accept that the Claimant deliberately entered the infectious room with a box of gloves and deliberated exited the room with the same box. This conduct is alleged to be misconduct because it is alleged to be contrary to the employer’s policy. What is important in this case is whether the Claimant knew or ought to have known that his conduct violated the employer’s policy and whether he knew or ought to have known that the employer might dismiss him for that conduct.

[77] The Commission did not obtain a copy of the policy, rule, or protocol that the Claimant is supposed to have violated. Nor did it require the employer to articulate the substance of the policy, rule, or protocol by which, the Claimant’s conduct was prohibited. There is no paraphrase of the policy in the file. These facts are unlike the facts in GD.^{Footnote 24} In this case, there is no evidence of how the policy was generally understood in the workplace and how it might apply to the Claimant’s actions may well be open to interpretation.

[78] It is clear from the text of the Code of Conduct and the Residents’ Bill of Rights, that the employer requires its employees to be safety conscious. However, I do not have evidence of what that is supposed to mean. There is no expert opinion about accepted safety standards for someone in the Claimant’s position or concluding that the Claimant’s conduct was unsafe.

[79] In fact, there is no evidence that the Claimant’s actions were contrary to policy beyond the employer’s unsupported opinion. As I noted when I found that the General Division had made errors of fact, I cannot find that the Claimant actually violated its policy without something more than the employer’s say-so. There is no other evidence by which I could find the Claimant’s actions to be in violation of employer policy.

[80] The Commission has not proven that the employer had a policy that prohibits the conduct for which the Claimant was dismissed, that the Claimant willfully breached the employer’s policy through his conduct, or that he knew or ought to have known he would be dismissed for what he did. In short, the Commission has not proven that the employer dismissed the Claimant for conduct that meets the definition of misconduct.

Conclusion

[81] I am allowing the appeal. The General Division made errors of fact. I have made the decision the General Division should have made. The Claimant is not disqualified because he was not dismissed for misconduct.