Digest of Benefit Entitlement Principles Chapter 7 - Section 2

7.2.0 A three-step solution

The legislation authorizes the payment of benefits within the framework established by the Act, Regulations and jurisprudence. It is the responsibility of a Commission officer to determine entitlement to benefits.

7.2.1 Step 1: Gathering relevant information from various sources

It is the responsibility of the Commission to gather all of the information required to determine whether or not the claimant lost his or her employment by reason of his or her own misconduct. The Commission must both^{Footnote 1}:

1. give the claimant and the employer an opportunity to provide information as to the reasons for the loss of employment; and
2. if information is provided, take it into account in determining the claim.

The officer's role is to gather all the relevant information in order that a decision can be made without delay, but within the framework required by the legislation. This means that all interested parties are given the opportunity to provide information on the reasons for the separation, and to refute the version provided by the other party.

Often the claimants are the first contact for fact-finding as they file the claim for benefits and provide basic information as to the reason for separation. This fact-finding by the officer will follow with the employer to obtain his or her own version as to the reasons, then with the claimant, if necessary, or even with anyone else who is able to shed light on the loss of employment. Naturally, the information will as much as possible be sought from those directly involved or eyewitnesses to the events, particularly when there are discrepancies between versions already obtained^{Footnote 2}.

The officer must adapt his or her fact-finding to the particular circumstances of the case when, for example, there are indications that the dismissal was related to trauma or incidents resulting from harassment, abuse or violence. The victim is usually a woman and the originator of the harassment is the spouse or another intimate partner^{Footnote 3}.

The employer is expected in such circumstances to explain precisely what actions or omissions led to the dismissal and what information was relied upon to conclude that the person in question committed such actions or omissions. The employer is not required to prove that the actions or omissions in question constitute misconduct under the Act nor is the Commission to rely on the employer's belief that the act in question constituted misconduct. Rather, this is one of the two specific questions that the Commission officer must answer in deciding on entitlement to benefits^{Footnote 4}.

Criminal offences or violations of employment statutes do not generally give rise to different procedures or a different line of questioning for the fact-finding with regard to the termination of employment. In some instances, obtaining the appropriate information concerning a person's actions may prove difficult. The employer may, for example, be reluctant to provide information if a Court or labour arbitration decision is still pending.

The officer must make the employer understand the need for detailed information, particularly with regard to the actions attributed to the claimant and in what context of work or otherwise the incidents occurred. Unless a Court has ordered a publication ban, the employer should be able to divulge sufficient information without adversely affecting any action or proceedings against the claimant. It is not, for example, necessary to provide all the details of an inquiry or the names of the persons named as witnesses.

The information at the employer's disposal may in some instances be limited, such as when the offence was committed outside the work place.

A mere disclosure of the charges with no further detail does not generally provide enough information concerning the actions or omissions attributed to the claimant or the elements relied upon to conclude that the claimant committed such actions or omissions^{Footnote 5}. Depending on the circumstances, a newspaper article describing the events and the alleged involvement of a person may constitute a valid written form of hearsay where information or details cannot be obtained from persons with more direct knowledge of the events.

The officer cannot guarantee confidentiality to the person providing the information, however, when the question arises, he or she can stress that the legislation provides that, where any person who, in good faith, provides the Commission with written, oral or documentary evidence required for determination of entitlement to benefit, the giving of such evidence is deemed an occasion of qualified privilege^{Footnote 6}.

This specific provision must not be resorted to as a means to obtain facts. The officer must never offer advice whether this provision would afford protection in any specific case. If the informant wishes to seek legal counsel as to the applicability of this provision prior to releasing the information, a reasonable period of time should be allowed.

Both employers and claimants alike are expected to act in good faith and submit evidence in support of their allegations. There is no question, however, of engaging in any sort of coercive or improper interrogation or a police inquiry with respect to the employer or claimant in order to determine what really happened or to extract admissions concerning the participation of an individual in certain events.

The legislation requires that the claimant provide a reason for any interruption of earnings or information concerning the termination of employment. Refusal to provide such information may result in a denial of benefits^{Footnote 7}.

It goes without saying that a disentitlement due to lack of information can be imposed only as a last resort, when reasonable attempts to obtain the relevant information have been unsuccessful. It must never be imposed when claimants have acted in good faith and frankly disclosed all the information they had. Even if the situation remains ambiguous, whether because the employer chooses not to disclose certain facts or because the employer's version is altogether different, we will rely solely on the balance of probabilities, with particular attention given to the credibility of the evidence.

[ November 2006 ]

7.2.2 Step 2: Evaluating the information without prejudice

In many instances, the versions of the facts provided by the parties differ appreciably, when they are not flatly contradictory. The officer must rely on the good faith of those providing evidence and weigh the credibility of the information and testimony given.

The officer must determine what is genuine, reasonable, plausible, and based on the facts, rather than mere presumptions, suppositions or opinions. Particular attention should be paid to the source of the information and its precise identification. Statements from someone with direct knowledge of events obviously take precedence over statements from another one who was not a participant, especially if the first individual is a disinterested party.

Statements from the employer carry neither more nor less weight than those from the claimant. It is necessary to objectively examine such statements rather than merely accept one or the other as necessarily true.

The claimant is not the only party who may at times have an interest in concealing certain information or denying certain actions. In some instances, the employer may wish to hide the fact that the grounds advanced were used to get rid of a person who had become a nuisance or unproductive, or who had not given in to advances. The grounds cited may be quite plausible, namely, absenteeism, insubordination, or a drop in productivity, yet may in fact simply be the consequences of harassment to which the employee was subjected.

After gathering and evaluating the available information, the officer will decide in favor of the version of the facts, which seems most credible given the circumstances. In some cases, the officer may feel that the accounts of the parties are equally credible, making it impossible to choose one version over another. In such cases, preference must be given to the version that is provided by the claimant, even if the other version appears to be equally credible^{Footnote 8}.

The benefit of the doubt is not to be given merely because there are contradictory versions. The officer must first determine which version is most credible. When the officer is faced with equally credible versions and cannot decide in favour of one version over the other, then the benefit of the doubt will be given to the claimant's version.

However, it should be noted that the versions given by the parties, even if they appear contradictory, are not necessarily incompatible in terms of what are the reasons for the cessation of employment. It could very well be that a voluntary leaving without just cause led to the dismissal^{Footnote 9}.

7.2.3 Step 3: Answering two specific questions based on the information gathered

This last step involves the officer answering two specific questions based on the unprejudiced evaluation of information gathered from various sources:

The decision to disqualify or not disqualify a claimant is therefore not an arbitrary one or one made to serve the interests of one party or the other. The fact that a person has been suspended or dismissed should not lead to an automatic assumption that the claimant lost his or her employment by reason of misconduct. An employer's subjective appreciation of the type of misconduct that warrants dismissal for just cause is not necessarily sufficient to constitute misconduct under the Act^{Footnote 10}.

A decision to disqualify someone from receiving benefits in such circumstances may be made only if the information in the file allows the Commission officer to answer yes to the two specific questions concerning misconduct.

It is at times difficult to answer one or the other of these questions because of the ambiguity, profusion or lack of information gathered, or because of controversy raised by certain information. In such cases, it is necessary to rely on the balance of probabilities, on what seems most likely, based on the whole of the credible information in the file.

The information gathered should enable the officer to ascertain the reason for the termination of employment, whether the actions or omissions attributed to the claimant are in fact more a pretext or excuse, or whether they are directly related to the termination of employment. It is necessary in such instances to find a causal relationship between the actions or omissions and the dismissal^{Footnote 11}.

The period of time that elapsed between the time when the employer became aware of the actions or omissions in question and the time when the employee was dismissed may be used as an indication in this respect. Doubt as to the real reason for the dismissal may arise when the employer took the time to find a replacement before dismissing the claimant or when the time that elapsed between the two events is inordinately long, unless for example it was necessary for the employer to proceed with a more detailed inquiry concerning someone's actions.

The officer is not required to be absolutely certain that the claimant committed the actions or omissions attributed to him or her and that the claimant lost his or her employment by reason of such actions or omissions. What is important is that this be the conclusion that may be drawn from the preponderance of the information in the file.

The fact that an employer initiated proceedings or filed or withdrew charges against the claimant, or that the claimant was exonerated by a court, tribunal or arbitrator, is not in itself conclusive. A judgement or decision handed down by another court or body is not binding on the decision-making authorities designated in the employment insurance legislation. They must decide the matter based on the information and testimony before them^{Footnote 12}.

The officer cannot wait indefinitely for the outcome of proceedings or other action before other authorities or for the availability of certain information which the employer or claimant refuses to reveal until such outcome is known^{Footnote 13}. The officer will make a decision based on the credible information to which he or she has access and will review the claim for benefits if other relevant information is later submitted by either party.

However, the claimant or the employer may subsequently request that an earlier decision be rescinded or amended upon the presentation of additional information, such as judgments, sentencing or decisions rendered under legislation other than employment insurance.

The legislation provides that^{Footnote 14}:

The Commission, a board of referees or the umpire may rescind or amend a decision given in any particular claim for benefit if new facts are presented or if it is satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.

Sometimes the parties may agree as a settlement of grievance that the claimant will receive a lump sum; the initial reason for separation will be changed to resignation instead of dismissal and that all references to the termination will be removed from the former employee's file. The question then posed is whether such agreements have an impact on the initial decision of misconduct and shall the voluntary separation now be considered as the reason for separation.

The answer lies in the terms used in the agreement. An element that may be determinant is whether the agreement includes a "without prejudice" clause or a similar clause which has an express stipulation or condition that, by entering into the settlement agreement, neither party makes an admission on the issue.

An agreement that includes such a clause is not generally admissible in evidence as proof that the loss of employment was not due to misconduct and consequently does not constitute new facts that could alter or affect the outcome of the initial decision of misconduct^{Footnote 15}.

If the agreement does not include this "without prejudice" clause, the Commission will consider these new facts in addition to the information already on file, against its initial decision, and determine whether the agreement, as new evidence, casts doubt on the claimant's misconduct and loss of employment as a result of such misconduct.

Where the officer determines that the loss of employment was not due to misconduct, the question will become a voluntary leaving issue. The claimant will be asked to show for what reasons he or she decided to voluntarily leave the employment, as there were no accusations maintained with regard to misconduct.