Employment Insurance (EI) and fired for misconduct

You were fired

More Information is available on Employment Insurance.

What you should know

Did you know that if you are fired due to your own misconduct, you will not be paid regular benefits. After being fired from your job, you must work the minimum number of insurable hours required to get regular benefits.

However, you may still be paid maternity, parental, sickness and compassionate care benefits as long as you qualify for these benefits.

What "misconduct" means

Generally speaking, "misconduct" refers to any inappropriate action, offence, or professional fault committed willingly or deliberately by a person while working for an employer. Misconduct occurs when an employee's behaviour is in violation of the obligations set out in his contract of employment and when, under normal circumstances, the employee should have known that the actions, omissions or faults could result in a dismissal.

It is not necessary that the alleged action, omission or fault happen during work, at the workplace or even while carrying out duties for the employer. This means that an offence committed outside the workplace could be misconduct, when the infraction results in no longer meeting the condition for employment and leading to the dismissal. For example, a bank teller convicted of shop lifting and for this reason is fired. Even though the infraction did not happen during work, we consider that he lost his employment due to his own misconduct, as he no longer meets the integrity condition, an essential condition of the employment.

Gathering facts from you and your employer

In order to make a fair and objective decision we must:

1. give you and your employer the opportunity to provide information as to the reasons for the firing; and
2. take this information into account to make the decision.

Often, it is at the time you file your claim for benefits that you provide basic information as to the reason for being fired. Afterwards, an agent contacts your employer to obtain his own version of facts, then with you, if necessary, when details or more explanations are needed. It could happen, in some situations, that a version of facts may be gathered from anyone else well-known with the events or facts, particularly when there are discrepancies between versions already obtained from you and your employer.

The role of the employer is to provide the information concerning the reason for the firing, specifying, among other things:

• what actions, omissions or faults caused the dismissal of the employee, such as, their exact nature, context and background;
• why such actions, omissions or faults required dismissal of the employee;
• if such actions, omissions or faults violated a provision of the contract of employment, a policy, a rule or a essential condition of the employment;
• on what information did the employer conclude that the employee committed the actions, omissions or faults in question, such as, testimony, investigations, reports or other sources of information;
• whether the employee had been previously informed of the employer's rules, policies, requirements or expectations;
• what reasons the employee gave for these actions or omissions;
• if a long delay exists between the time the employer became aware of such actions, omissions or faults and the time the employee was fired, what were the reasons for delaying the dismissal of the employee.

The role of the person claiming benefits is to provide the information concerning the reason for being fired, specifying:

• whether or not he agrees with the version given by the employer as the reason of the dismissal;
• what he has to say about the actions, omissions or faults attributed to him as the reason for the dismissal;
• whether he was aware of the employer's rules, policies, expectations or requirements on this matter;
• under what circumstances the actions, omissions or faults attributed to him occurred;
• if any witnesses or persons who could testify to the events or facts.

The employer’s statement carries neither more nor less weight than the statement of the person claiming benefits. The agent must examine objectively, each testimony, without accepting one or the other as necessarily true.

The role of the agent is to gather and evaluate the versions of facts. He must evaluate the credibility of the information and testimonies received. by determining objectively what is genuine, based on the facts, rather than mere presumptions, suppositions or opinions. The agent will decide in favour of the version of facts, which seems most credible given the circumstances and will make a decision according to the EI Act and the jurisprudence.

Actions, omissions or faults judged as misconduct

Various reasons may prompt an employer to fire an employee due to misconduct. The following actions or omissions are considered to be the most frequent situations of misconduct:

• Absence without notification
• Absence without justification
• Absence without Permission
• Tardiness
• Insubordination—refusal, disobedience
• Refusal to perform certain duties
• Refusal to carry out an order or instruction
• Refusal to work overtime
• Hostile behaviour
• Disrespectful conduct
• Acts of violence
• Breach of rules
• Dress and appearance
• Unlawful union activities
• Safety rules
• Consumption of alcoholic beverages or drugs
• Dereliction of duty
• Criminal offences

We can conclude that there is no misconduct when the reason for the dismissal is due to incompetence, unsatisfactory performance, inaptitude to perform certain duties or inexperience, unless these actions, omissions or faults are done wilfully or are the result of unwillingness.

You are fired before the end of your term or before being laid off

When you are fired due to your own misconduct within 3 weeks of the end of your term or being laid off, you will not be paid regular benefits up to the date your employment was to end. After that period, once you will have served a 2-week waiting period, you may be paid regular benefits.

However, you may still be paid maternity, parental, sickness and compassionate care benefits as long as you qualify for these benefits.

You feel you were fired unjustly

Did you know that, if you feel you were fired unjustly, you can use the labour standards, labour rights or human rights legislation Acts or Regulations to file a complaint. You can also obtain information from Labour Operations regarding unjust dismissal.