Digest of Benefit Entitlement Principles Chapter 7 - Section 1

7.1.0 A mixed question of law and fact

It is not merely by chance that, in the years since the inception of the unemployment insurance program in 1940, the legislator has passed increasingly stringent provisions with regard to insured persons who voluntarily leave their employment or lose their employment by reason of their own misconduct.

The severity of current provisions accordingly reflects the government's resolve to put an end to misuse of employment insurance program funds and commit already limited resources to providing financial support for those who lose their employment through no fault of their own and to implementing programs and initiatives aimed at assisting such persons to re-enter the labour market.

The current legislation provides that ^{Footnote 1} :

A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

1. the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
2. the claimant is disentitled under sections 31 to 33 in relation to the employment.

This provision is a true disqualification measure ^{Footnote 2} since such a person is prevented from receiving benefits for all such weeks of the benefit period for which benefit would otherwise be payable following the waiting period ^{Footnote 3} . The disqualification is nonetheless suspended for any week for which the claimant establishes entitlement to sickness, maternity or parental benefits.

The word "misconduct" is not defined in the legislation. When this word is used in a legislative context, it is the prerogative of the courts to interpret it. It is therefore a question of law. Over the years jurisprudence has made a number of clarifications to the interpretation of the word "misconduct".

In general, misconduct refers to ill-intentioned actions by an employee, actions that are incompatible with the reliable and suitable carrying out of the duties for which the employee was hired. These are actions that result in the person, who committed these infractions and worked for the employer at issue, no longer meeting the expressed or implicit conditions of employment or work ^{Footnote 4} .

It is not necessary that the misconduct occur during work, or at the workplace or even while carrying out duties for the employer. An offence committed elsewhere than at work could amount to misconduct if the infraction was such that the conditions of employment, whether they are explicitly or implicitly ethical or physical conditions, could no longer be met and it led to the dismissal ^{Footnote 5} .

While this is not an absolute principle, it can also be said that, in order to constitute misconduct, the actions or omissions complained of must have been voluntary or willful or of such a careless or negligent nature that it appears to have been committed deliberately ^{Footnote 6} .

Misconduct involves the claimant's own behaviour, or responsibilities for which he or she was personally accountable. Association with a group of individuals is not incriminating in itself, but group misconduct does not relieve the individual of the responsibility for his or her actions ^{Footnote 7} .

The question of whether or not a particular action or omission of an employee is covered by the interpretation given the word by the courts is a question of fact, which will be dealt with in later sections ^{Footnote 8} . Misconduct is thus a mixed question of law and fact ^{Footnote 9} .