Digest of Benefit Entitlement Principles Chapter 24 - Section 5
24.5.0 Grounds for exclusion of earnings - insured employment with an employer
24.5.1 Separation from employment
A reason for separation from insured employment with an employer which occurred during the qualifying period may require adjudication with respect to the reason for the loss of that employment(for example quit or dismissed) in order to determine if the earnings from that employment should be used in the calculation of the benefit rate Footnote 1 .
If it is determined by the Commission that a claimant's insured employment in the qualifying period was voluntarily left by them without just cause Footnote 2 or lost by reason of their own misconduct Footnote 3 , all earnings gained from that employment are excluded from calculation of the benefit rate. Adjudication of reasons for separation on special benefits self-employment claims carries the same adjudication principles as those for other EI claims for benefits. General information on these two reasons follow, with references to detailed information contained in their respective Chapters of the Digest of Benefit Entitlement Principles.
22.214.171.124 Voluntarily leaving employment
The legislation provides the definition of a voluntary separation of employment as well as 13 examples Footnote 4 of what constitutes just cause, though it is important to note that this is not an exhaustive list. Facts are gathered by the Commission from the claimant and the employer in order to make a fair determination of whether just cause for leaving one's employment was present. Details on the principles of and various circumstances that lead to a determination of just cause for voluntarily leaving employment are found in Chapter 6 of the Digest of Benefit Entitlement Principles and apply, in their entirety, to reasons for separation which occur during the qualifying period of self-employment claims for special benefit Footnote 5 .
Unlike the concept of voluntarily leaving employment, 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 one case, for example, the Federal Court of Appeal Footnote 6 held that "there can only be misconduct if the conduct is deliberate, that is, the actions that lead to the dismissal were conscious, wilful and intentional. In other words, there is only misconduct when the claimant knows or should have known that his conduct would impede on his ability to execute his obligations towards his employer and that, as a result, it was possible for him to be dismissed."
Principles which guide the adjudication of a dismissal to determine if misconduct was present are found in Chapter 7 of the Digest of Benefit Entitlement. As well, examples of dismissal situations which may lead to a determination of misconduct, as well as those which may not, are detailed Footnote 7 .
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