Digest of Benefit Entitlement Principles Chapter 7 - Section 3

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7.3.0 Relating to actions or omissions

The word "misconduct" is not defined in the legislation. It is, rather, jurisprudence that has, over the years, provided a number of clarifications concerning the interpretation of this word in the legislative context. The same is true with regard to the specific actions or omissions covered by this interpretation. They are not included as such in the legislation, but have been identified in jurisprudence.

One of the two questions which the Commission officer must specifically answer is whether or not the claimant committed the actions or omissions covered by the interpretation given to the word "misconduct" in the jurisprudence. The following sections deal with the most frequent actions or omissions in which elements characteristic of misconduct are found.

7.3.1 Unlawful union activities

The various labour laws provide everyone with the right to belong to a labour association, organization or union of their choice and to participate in its formation, lawful activities and administration. The loss of employment resulting from the exercise of this right cannot be held to be misconductFootnote 1.

Lawful activities generally correspond to the activities allowed under the various provincial or federal laws dealing with labour relations or an agreement between employer and union within the framework of a collective agreement or some sort of labour contract.

Union representatives have the same obligations as all other employees, to accept the direction of the employer with respect to the performance of the job.

It is not unusual for a claimant to allege that the dismissal resulted from union affiliation or activities, especially at times when a first union local is being formed or there is a labour conflict. If lawful activity was involved, the probability is that other grounds for dismissal may have been cited by the employer.

These conflicting positions regarding the dismissal do not make it easy to search for facts or determine the credibility of statements made. There must be a clear causal connection between the misconduct and the dismissal. Where the misconduct is used as a simple excuse or pretext for the dismissal, it is insufficient for the imposition of a disqualification. The misconduct must be the cause for losing the employmentFootnote 2.

Finally, participation in an illegal strike constitutes misconduct by the claimants involved, even if such misconduct occurred in the company of several employees. The misconduct of which an individual is guilty is still his or her misconduct for the purposes of the legislationFootnote 3.

7.3.2 Absence from work

Absenteeism, including tardiness, can sometimes be interpreted as voluntarily leaving employment. However, it is clearly preferable to consider the question in terms of misconduct, especially if the claimant had no intention of leaving.

A contract of employment contains not only rights, but obligations as well. One of these is to report to the workplace on given days at the agreed time. When an employee is unable to do so on a given occasion, all the customary precautions must be taken in such circumstances to protect the employment. These precautions are even more essential where the claimant's punctuality and attendance already leave much to be desired or numerous warnings in this respect have been issued to the claimant in the past.

In the event of an absence or late arrival, an employee must take the necessary action to inform the employer, in advance if possible, or else as soon as possible, explain the reasons, and request permission, especially if the absence or lateness is not due to compelling circumstances. Failing to do so, the behaviour may be deemed misconduct.

7.3.2.1 Tardiness

Arriving continually late for work constitutes misconduct. The same applies to prolonging coffee breaks and mealtimes beyond their authorized lengths. It goes without saying that an employee must take the necessary steps to be at the job at the agreed time, especially if the employee has been sternly warned about his or her lack of punctuality or issued verbal and written warnings to the effect that if no improvement occurred dismissal would result.

In the event of a late arrival or a foreseen late arrival, an employee is generally expected to inform the employer, explain the reasons, and request permission. Failing to do so, the behaviour may be deemed misconduct.

7.3.2.2 Absence without notification

An employer has the right to expect employees to report to work in a regular manner and remain on the job until their work period is over. This whole question of regular attendance at work is without any doubt a significant factor for the productivity of a business. Thus, it is obligatory for anyone wanting time off or foreseeing an absence to first inform the employer and seek permission.

In some instances, absences are not foreseeable, such as in the case of a last-minute occurrence beyond the person's control or an emergency requiring the person to abruptly leave work or preventing him or her from reporting to work. Although such situations may be serious and disturbing, an employee has a duty to inform the employer before leaving the workplace or, if the situation is such, notify the employer as soon as possible, by telephone or other means, that it was not possible to remain at or report to work.

Neglecting to notify the employer in a timely manner may constitute misconduct at first glance, even if the absence is caused by events beyond the claimant's control. It is up to the claimant to prove that it was impossible to inform the employer within a reasonable time.

Preferably, the employee himself or herself should notify the employer about the absence. If it is not possible to do so, the spouse or some other authorized or trusted person must be asked to do so for the employee. In any case, it is up to the employee to use all reasonable means to notify the employer, not the latter to inquire about the employee's reasons for being absent.

When the statements of the employer and the employee are contradictory, it is essential to obtain full details from both parties. The decision will be based on the credibility of the statements and on the balance of probabilities.

7.3.2.3 Absence without justification

It is not enough to simply advise the employer of an absence; the employer is entitled to know the reasons. Thus, in itself, an unjustified absence may constitute misconduct.

Absenting oneself for a frivolous reason, on some sort of pretext, using a subterfuge or else refusing to disclose the reason for the absence, constitutes misconduct. Misconduct is all the more evident if it is not a first offence.

When permission to be absent was not granted by the employer and the contention is that the claimant had to be absent regardless, the reason for the absence becomes of prime importance. What needs to be determined in such a case is whether the absence was necessary and unavoidable. Plausible explanations are acceptable. In case of doubt, however, the claimant can be asked to provide appropriate evidence. In such a case, it is not so much the failure to provide proof that may result in a disqualification, but rather the fact that the absence was without justification.

In many cases, it is a question of credibility. An employee on sick leave is certainly not expected to remain totally idle during this period. Depending on the nature of the incapacity, the time may be occupied with leisure pursuits or domestic duties compatible with the state of health. However, the illness still has to be genuine and not a mere pretext for going about other business, and it must remain credible given the type of activities pursued.

Situations of harassment, abuse or violence, in which the victims are usually women, may lead victims to be absent from work without expressly informing their employer of the true reason for their absence. A dismissal that may occur in such circumstances, in which the absence is related to the harassment and violence suffered by the victim, does not constitute misconduct within the meaning of the Act.

The same applies when a person is dismissed due to unsatisfactory performance or behaviour detrimental to his or her employment—for example, absenteeism or not getting along with others at work—if this performance or behaviour stems from events related to the harassment and violence suffered by the victim at the hands of a spouse or other intimate partner.

The officer must adapt his or her search for the facts to the specific circumstances of the case; this is true, for example, where there are indications that a person left his or her employment because of sexual harassmentFootnote 4. The Commission’s policy in such a situation is to offer to the claimant the opportunity to speak to an officer of the same gender as the victim, who is usually a woman, and to obtain the information needed for processing the claim in a more private environment.

An officer must not expect a victim of violence to openly discuss the events that took place, to have kept a record of the steps taken to remedy the situation or to have taken an entirely rational approach.

The officer must endeavour to obtain only the basic information the victim agrees to provide and must, of course, be discreet and considerate. In some cases, the officer may consider gathering testimony from other persons who, in the victim's opinion, are familiar with the situation. Every effort must be made to deal with the victim in a compassionate, professional and reassuring manner.

The officer will ask the employer in this case to provide the required information on the reason for separation. The officer will simply take the employer's version, and at no time at this stage in the gathering of facts will he or she reveal to the employer the account given by the victim unless the victim agrees to such disclosure or the employer mentions it specifically.

November 2006 ]

7.3.2.4 Absence without permission

Absenting oneself without requesting or receiving permission may constitute misconduct, especially if the reason for the absence is not really serious or if this was not a first offence.

Absenting oneself when the employer has refused authorization may be viewed as misconduct, especially when the claimant was formally warned by the employer of the risk being taken by defying ordersFootnote 5. What is required in this case is a determination of what were the actual circumstances and did other reasonable alternatives exist for the claimant that could have remedied the situation instead of being absent and taking the risk of being fired.

Neglecting to request permission should not be held against the claimant if the absence was unavoidable, for example where it was due to illness, as long as the employer was notified and the proof requested was provided.

7.3.3 Insubordination

Insubordination may be defined in terms of a refusal, of disobedience by an employee with regard to carrying out an order, instruction, regulation or any other expression of authority used by an employer.

No misconduct exists where the refusal or disobedience can be explained by a serious and genuine misunderstanding not involving any bad faith on the part of either partyFootnote 6. The same can be said when it is apparent that there was a personality conflict between the employee and the employer and was the cause for the dismissal and the reason given by the employer was a mere pretext.

An employee may find it impossible, in all conscience, to follow a policy set out by the employer. It should be considered in this case what is the situation that led to the problem, whether the actual policy appears to be reasonable and whether in the circumstances other reasonable alternatives existed which could have remedied the situation.

7.3.3.1 Refusal to perform certain duties

When an employee refuses to perform duties that are normally part of the job, it may be considered misconduct unless the refusal can be justified. If it is contended that the employer's request contravenes provisions of a statute or the collective agreement, the employee must, before refusing to perform the duties, take appropriate steps to ensure the application of the statute or collective agreement using, for example, the grievance procedure. In other words, the employee must try to avoid provoking dismissal by a refusal.

Some legislation dealing with occupational health and safety acknowledge the specific right of workers to refuse to perform duties if they have reasonable grounds for believing that there is some danger to their and other persons' health or safety. This right of refusal is generally granted to the worker until the designated authorities have rendered a binding decision concerning the resumption of work. However, a worker cannot refuse to perform certain duties when the immediate effect of the refusal is to jeopardize another person or when the conditions of work are normal, given the type of occupation.

When the refusal has to do with additional duties that are not part of the employee's regular duties, the decision rests on how legitimate and reasonable was the employer's request. Another consideration would be whether the employee was offered monetary compensation for these additional duties, or whether the employer's request was a special request made in emergency or unforeseen circumstances. Unless there is a significant difference between the duties requested and those normally performed, the refusal constitutes misconduct on first consideration. It is then up to the claimant to provide an explanation and justify the refusal.

If the additional duties entail a certain danger, the employee cannot be expected to blindly obey. Therefore when the additional duties required presented a real danger, misconduct cannot be concluded if the employee's refusal to perform these duties was based on a real fear for his or her health, physical integrity or life as opposed to a simple caprice or to stubbornness and if there were no other reasonable alternatives that could have remedied the situation.

7.3.3.2 Refusal to carry out an order or instruction

Refusal to obey or comply with a legitimate and reasonable order or instruction of the employer may constitute misconduct.

The officer must try to determine whether the order or instruction was reasonable as opposed to, for example, a demonstration of mere caprice or pure whim on the employer's part, and whether it contravened any provision of the collective agreement. It is appropriate to question whether the claimant could have made use of channels provided for under the collective agreement, for example, to voice disagreement rather than risk dismissal by a flat refusal.

If the order or instruction seems reasonable and rational, misconduct may be concluded, especially where the employee was warned verbally or in writing to obey his or her line supervisor's orders. If the claimant contends that the order or instruction was unreasonable, he or she must provide explanations in support of that contention and show why other channels were not used to voice the claimant's disagreement.

7.3.3.3 Refusal to work overtime

Working overtime is a common practice in the working world. It is not reasonable, however, to require a person to work an excessive amount of overtime or to not appropriately compensate that person for the overtime worked. In principle, an employee does not have the right to refuse to comply with a reasonable request by the employer in this respect unless the collective agreement or contract of employment stipulates that the employee's consent is necessary in such circumstances.

The claimant may allege that the employer's request was in violation of the collective agreement in that the required period of notice was not given, for example, or may allege that it was impossible to agree to the overtime in question. In such a case, the claimant must demonstrate the validity of his or her allegations and refusal to work overtime.

Faced with the obligation of working overtime, an individual might decide to leave the employment rather than wait to be dismissed. The matter must then be viewed in terms of voluntarily leaving employmentFootnote 7.

7.3.4 Hostile behaviour

As much as possible, the relations between the employer, employees, and clients must be maintained in a healthy and harmonious atmosphere and the specific roles of each person must be borne in mind.

Every employee must behave in a respectful manner with others, whether it is the employer, work mates, clients or the general public, and conduct him or herself in such a way as to not offend, harass or provoke anyone.

7.3.4.1 Disrespectful conduct

Respect is as much a matter for subjectivity as is a lack of respect. One person will not find a particular attitude offensive while another might see similar behaviour as equivalent to the supreme insult. In making judgments in this area, then, it is important to be well aware of this complexity in human relations and keep to the established facts in preference to the opinions voiced by those involved.

Lack of respect may take such varied forms as insolence, impertinence, impoliteness, coarseness, insults, threats, depending on the attitude taken or words spoken, having the effect of offending, abusing or provoking the employer, co-workers or clients.

Lack of respect may be the effect of anger, provocation, emotionalism, feelings of rejection or frustration resulting from working in a difficult and taxing work climate. Often it takes only a minor, commonplace incident to have this appear and take on exaggerated proportions.

As a general rule, attitudes, behaviours or remarks that have the result of giving offence may be viewed as misconduct. However, before reaching such a conclusion, consideration should be given to what were the actual circumstances and to what extent the attitudes, behaviours or remarks constituted a genuine offence incompatible with carrying out the duties for which the person was hired.

7.3.4.2 Acts of violence

Acts of violence usually constitute a kind of extreme manifestation linked to a disagreeable climate between individuals and are typified by acts of physical assault on another persons.

Obviously, acts of violence may constitute misconduct. A conclusion of misconduct must nonetheless not be arrived at too quickly in a case where, for example, after asking for protection from his or her employer, the claimant was nonetheless provoked and forced to defend him or herself.

When the acts of violence were committed outside of the workplace, their cause and subject must be assessed. Misconduct should be concluded where the infraction results in no longer meeting the condition for employment and has led to the dismissalFootnote 8.

7.3.5 Breach of rules

Breaches of established standards, instructions, formal or implicit rules or regulations or the collective agreement may also constitute misconduct at first glance where such standards, instructions or rules or regulations are shown to exist and the breach is specified. It is then up to the claimant to justify the conduct or show that the requirement was unreasonable.

An offence committed outside of the workplace may constitute misconduct where the infraction results in no longer meeting the condition for employment and has led to the dismissalFootnote 9.

7.3.5.1 Dress and appearance

Numerous establishments providing service to the public, such as hotels, restaurants, and security agencies have restrictive policies on the wearing of uniforms or distinctive clothing. The obligation to report to work dressed in the authorized manner is often coupled with a prohibition against wearing such clothing after working hours.

Other employers may have certain requirements with respect to the length of hair or of a beard, especially for example, if the work is done in the presence of clients or if there is a question of hygiene, safety or company image.

As a rule, the fact of breaching the employer's reasonable policies, rules or requirements concerning dress and appearance may constitute misconduct, unless they are shown to be in specific contravention of moral principles or run counter to any legislation on human rights and freedoms.

A person who alleges that such rules or requirements were unreasonable must be able to prove the allegation, which may be difficult if these working conditions were known and agreed to by the claimant at the time of hiring. A claimant is not justified in choosing to be unemployed rather than comply with a reasonable request or requirement from the employer.

7.3.5.2 Safety rules

Many sectors have specific safety rules concerning, for example, the wearing of safety goggles or boots, or prohibiting the use of certain dangerous products or materials, or setting out the means or methods of transportation of certain types of goods.

These rules, aimed at protecting human life and property, are even stricter in high-risk areas such as air and marine navigation, railway operations, and operations in munitions factories and nuclear plants.

The fact that safety rules were breached and that an accident resulted from such breach does not necessarily mean that there was misconduct. There is clear misconduct where the person's breach of safety rules was deliberate, or occurred following a warning, or where errors were made due to negligence or inattentiveness on the claimant's part. There is no misconduct if the breach was really negligible, not habitual and no real danger was involved.

Where a specific responsibility has been entrusted to an employee and demands careful attention, that person must ensure, and not simply assume, that it is properly carried out. For misconduct to exist, then, it is not absolutely necessary that the negligence be willful. It may be due to lack of attention. It is up to the claimant to provide explanations for the negligence or lack of attention shown.

In certain sectors such as in railway operations, an entire crew may be held responsible for a breach of safety rules or for incidents that endangered the lives of people or caused material damage, even though some members of the team may share little or none of the blame. There is misconduct only if the person was personally guilty of the breach or for the incidents.

In high-risk sectors, a board is generally appointed to inquire into the circumstances surrounding the violation of a safety regulation. A finding by such a board that a person was negligent is not necessarily indicative of misconduct. It is necessary to carefully analyze the information on which the finding was based and determine whether the actions or omissions attributed to the claimant constitute misconduct within the meaning of the employment insurance legislation.

Finally, there is no misconduct where a person concerned with safety rules refuses to drive a vehicle or use a piece of machinery because of a serious threat to health or safety. Such a conclusion takes for granted that there was a serious motive for the refusal, as opposed to a capriciousness or simple conflict with the union and in the circumstances no other reasonable alternatives existed that could have remedied the situation.

7.3.5.3 Consumption of alcoholic beverages

It can generally be said that every contract of employment includes a tacit prohibition against the consumption of alcoholic beverages during working hours, except under special working conditions, as in the case of wine tasting, for example, or in special circumstances, such as representing one's firm at a business meal.

As a general rule, misconduct may exist whenever this prohibition is violated, regardless of whether or not the business had a formal regulation in this respect. This is all the more the case where the nature of the employment is such that any consumption of alcoholic beverages is prohibited or not appropriate, such as for the person who drives a public vehicle or is a police officer.

The situation where the person presents him or herself at work in an inebriated state and cannot adequately carry out his or her duties, could also constitute misconduct.

Numerous incidents can develop in the context of excessive consumption of alcoholic beverages or flow from problems caused by alcoholism which affect a person's relationships at the workplace. The particular offence must be looked at in terms of the principles enunciated in the different sections involved, namely, absence from work, insubordination, hostile behaviour, and breach of rules.

These cases will be dealt with in the same way as those of ordinary workers. Workers have rights under the law, but they also have obligations, one of which is not to deliberately expose themselves to dismissal.

7.3.5.4 Dereliction of duty

An employment contract can be broadly defined as an agreement between employer and employee assigning payment and other benefits to the employee in exchange for services which, by virtue of this mutual interest, implies respect for rules of conduct agreed to by the parties and sanctioned by professional ethics, common sense, usage or custom.

There are numerous acts and omissions that can be labeled misconduct, in the sense that they are incompatible with the objectives of an employment contract, present a conflict of interest with the employer's activities, or have a negative effect on the relationship of trust between the parties. This would also be the case where it is a violation of a law, a regulation, or of a professional code of ethics that results in no longer meeting the condition of employment and has led to the dismissalFootnote 10.

This applies, for example, to sleeping on the job, making long-distance telephone calls at the employer's expense, taking supplies for one's own personal use without authorization, falsifying expense accounts or time sheets, selling articles without authorization, or taking money from the employer's till without authorization, even if intending to later replace itFootnote 11.

Incompetence, unsatisfactory performance, inaptitude to perform certain duties, or an error attributable to intense pressure at work or inexperience does not amount to misconduct unless it is willful or the result of unwillingness.

In addition, unless there is clear negligence or dishonesty, an error in judgment in decisions made or actions taken in the course of employment cannot be held to be synonymous with misconduct. Moreover, a false statement made by a claimant at the time of applying for work cannot generally support the conclusion that the loss of employment was due to misconduct. The same is true of unimportant and insignificant breaches.

In one interesting case, it was held that there was no misconduct in the mere fact that a person, feeling ill while at work, took medication that she knew had been prescribed for someone else, the effect of which was to make her unable to continue her work. To conclude that there was misconduct, the claimant would also have had to be aware of the effects this medication would have on job performanceFootnote 12.

It is expected that someone who, because of health, must take medication while working will make sure that it will not have the effect of altering behaviour to the point where job performance will be affected or constitute a danger for other workers or himself or herself, or even risk damage to the employer's property. In such a case, the employee should advise the employer, especially if the job duties require skill and steady concentration.

7.3.5.5 Criminal offences

As seen earlierFootnote 13, fact-finding in such cases is one of the main difficulties encountered when adjudicating the claim for benefits. The employer may at times be reluctant to divulge certain relevant information, or may possess little information when the offence occurred outside of the workplace.

This information relating mainly to the actions or omissions of the claimant is nonetheless essential for arriving at a decision. It is no more permissible in this type of offence than for other types to rely on vague statements, presumptions or the simple fact that the employer must surely have had good reasons for dismissing the claimant.

There must be a reasonable search for the pertinent facts. This is not to be an intensive investigation to demonstrate beyond any doubt that the person was or was not guilty of the infraction, nor is it to be an exhaustive interrogation to obtain a confession. These roles belong to the Crown and other tribunals of competent jurisdiction, and not to the Commission.

Withdrawal of a charge in criminal proceedings often simply means that the Crown lacks sufficient evidence to incriminate the claimant beyond any reasonable doubt. Misconduct within the meaning of the employment insurance legislation is determined on the basis of the balance of probabilities, which is much less stringent.

The fact that charges have been brought, or that a verdict has not yet been rendered or that there was an acquittal, is not determinative on the question of misconductFootnote 14. It is not unusual in this type of case for there to be a lengthy delay between the laying of charges and the hearing. The decision as to entitlement to benefit will not be delayed in such circumstances unless the case is expected to be heard very soon.

It is up to the Commission to decide on entitlement to benefit by answering to the relevant questions based on the information already on hand, even if criminal offences are involved. The decision made on misconduct will not be reviewed once the courts have rendered judgment unless the claimant or employer requests that the decision be reconsidered.

The offence which constitutes an infraction or a criminal act which results in a conviction under the Criminal Code would be a misconduct resulting in a disqualification when it led to a dismissal because the employee could no longer meet the conditions to employmentFootnote 15.

In this sense, it is not necessary that the misconduct be committed at work, at the workplace or while carrying out duties for the employer. An example is the police officer or bank teller who is convicted of theft and is dismissed because he or she no longer meets the trust and fiduciary conditions of employment required for that jobFootnote 16.

Driving while under the influence of alcohol or exceeding the legal blood alcohol limit is a voluntary decision that characterizes misconduct. The person who, as a condition of employment requires a driver's license, loses this permit and as a consequence loses employment, would be subject to a disqualification from benefitsFootnote 17.

The fact of having a record of convictions can be a serious obstacle in the way of someone seeking employment. As a result, it is fairly common for someone not to reveal the existence of a conviction record when hired - right up until the day the employer learns about this record and decides to dismiss the worker for this reason. Misconduct does not exist in such circumstances.

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