Digest of Benefit Entitlement Principles Chapter 7 A.2

A.2.1 Actions or omissions committed prior to being hired or outside the workplace context

It must be the misconduct committed by the person who worked for the employer at issue.

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.

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 dismissal.

An infraction committed elsewhere than the workplace may constitute misconduct if the infraction results in no longer meeting the condition for employment and has led to the dismissal.

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 job.

Driving while under the influence of alcohol or exceeding the legal blood alcohol limit is a voluntary decision which 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 benefits.

Reference:

• see 7.1.0, "A mixed question of law and fact";
• 7.3.4.2, "Acts of violence";
• 7.3.5, "Breach of rules";
• 7.3.5.5, "Criminal offences"

A.2.2 Legal union activities

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 misconduct.

Reference:

• see 7.3.1, "Unlawful union activities"

A.2.3 No personal breach or negligible breach

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 and no real danger was involved.

The same is true of unimportant and insignificant breaches.

In certain areas 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 claimant was personally guilty of the breach or for the incidents.

Reference:

• see 7.3.5.2, "Safety rules";
• 7.3.5.4, "Dereliction of duty"

A.2.4 Genuine Fear for One's Health, Physical Integrity or Life

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.

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 it for granted that there was a serious motive for refusal, as opposed to a capriciousness or simple conflict with the union in the circumstances no other reasonable alternatives existed that could have remedied the situation.

Reference:

• see 7.3.3.1, "Refusal to perform certain duties";
• 7.3.5.2, "Safety rules"

A.2.5 Errors of judgment or errors attributable to excessive pressure or inexperience 

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.

Reference: see 7.3.5.4, "Dereliction of duty";

A.2.6 False statements or failure to reveal background information at time of hiring

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 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.

Reference:

• see 7.3.5.4, "Dereliction of duty";
• 7.3.5.5, "Criminal offences"

A.2.7 Incompetence, unsatisfactory performance and inaptitude

Incompetence, unsatisfactory performance or inaptitude to perform certain duties . . . does not amount to misconduct unless it is willful or the result of unwillingness.

Reference:

• see 7.3.5.4, "Dereliction of duty"

A.2.8 Serious misunderstanding, personality conflict

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 party. 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.

Reference:

• see 7.3.3, "Insubordination"

A.2.9 Rules or requirements violating moral principles or rights and freedoms

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.

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

Reference:

• see 7.3.3, "Insubordination";
• 7.3.5.1, "Dress and appearance"