Digest of Benefit Entitlement Principles Chapter 7 - Section 3
7.3.0 Misconduct relating to actions or omissions
In addition to setting out the principles that establish misconduct, case law also identifies specific conduct that equates to misconduct. The following sections address particular circumstances the law identifies as misconduct.
The acts and omissions discussed below represent fundamental aspects of the employer-employee relationship. The payment of benefits rests on whether the employee was responsible for breaching such an aspect. It is important to note that either the employer or employee may breach the employment relationship. The EI Act does not offer redress to an employee who has suffered an undue dismissal, nor is it intended to judge the actions of the employer. Employees have other avenues by which to seek assistance in cases of unjust dismissal. The Commission’s responsibility is to determine whether employees who claim benefits have lost work as a result of actions over which they had control, and to determine whether they can receive regular benefits.
As mentioned previously, the word "misconduct" is not defined in the legislation. Rather, jurisprudence 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.
As mentioned earlier, 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 Absence from work
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. Regular attendance at work is without any doubt a significant determinant of the productivity of a business. Thus, it is necessary for any employee 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 employee's control or an emergency requiring the employee to abruptly leave work or preventing them from reporting to work. An employee has a duty to inform the employer before leaving the workplace or, depending on the situation, notify the employer as soon as possible that it was not possible to remain at or report to work.
Absence from work means any situation in which the employee should be present and is not. This includes failing to come to work; being late to report in or leaving before the end of a shift (CUB 66381A, CUB 74804); taking breaks at non-scheduled times, leaving early for or coming back late from a break.
An employee must make necessary arrangements to be at work on the agreed upon times. If the absence is foreseeable, the employee is expected to notify and explain the situation to the employer.
If a person is unable to report to work as a result of an addiction and as a result, is dismissed, that person is considered to have lost the job as a result of misconduct (A-85-06, A-582-98, A-570-00, A-255-03, A-315-05). The absence from work is the result of voluntary, deliberate or even reckless behaviour taken by the person even though they knew or ought to have known that this could result in dismissal.
7.3.1.1 Tardiness
There are jobs for which the need to report on time is more critical than for others. For example, tardiness may mean a production line is delayed until the absent employee arrives or can be replaced. This results in a loss of time and revenue. There are jobs in which the delay may be less critical, and the employer may be more flexible in their expectations. Fact finding will establish the employer’s expectations and the employee’s understanding regarding work schedules.
Arriving continually late for work constitutes misconduct. The same applies to prolonging coffee breaks and mealtimes beyond authorized lengths. An employee must take the necessary steps to be at the job at the agreed upon time, especially if the employee has previously been warned about their lack of punctuality or issued verbal or written warnings to the effect that if the behaviour did not improve, dismissal would result (A-558-12).
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 may be found to be misconduct.
7.3.1.2 Absence without notification
Neglecting to notify the employer of an absence in a timely manner may constitute misconduct, 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 should notify the employer about the absence. If it is not possible to do so, the spouse or some other authorized or trusted person may do so for the employee. It is up to the employee to use all reasonable means to notify the employer; it is not up to the employer 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.
In certain situations, a failure to notify the employer of an absence may not be considered misconduct. Events may occur where it is reasonable to believe the employee had satisfactory reasons for failing to report the absence. Depending on the facts obtained relating to the issues of notification and justification, an absence without permission may or may not be misconduct.
7.3.1.3 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, using some sort of excuse or pretense, or 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 (A-440-10). 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 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 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, toward an employee may lead the employee to be absent from work without expressly informing their employer of the true reason for the absence. A dismissal in such circumstances, in which the absence is related to the harassment and violence suffered by the claimant, does not constitute misconduct within the meaning of the Act.
The same may apply when a person is dismissed due to unsatisfactory performance or behaviour detrimental to their employment - for example, absenteeism or not getting along with others at work - if this performance or behaviour stems from events related to harassment or violence suffered by the claimant at the hands of a spouse or other individual.
7.3.1.4 Absence without permission
Absenting oneself without requesting or receiving permission may constitute misconduct, especially if the reason for the absence is not serious or if it was not a first offence (A-198-11).
Absenting oneself when the employer has refused authorization may be viewed as misconduct, especially if the claimant has been formally warned by the employer of the risk associated with defying orders. What is required in this case is a determination of the actual circumstances and whether other reasonable alternatives were available to the claimant.
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.
Permission means the employer acknowledges and allows the absence. Larger organizations usually have a formal process by which leave is requested and granted. Smaller employers may be less formal, granting leave through verbal agreement. If dismissal occurs because permission was not given, the Commission must seek proof that permission was withheld by the employer, and that the employee understood permission was denied.
7.3.1.5 Absence/Tardiness and progressive discipline
Unauthorized, unjustified absence from work is a conduct often subject to the progressive discipline process (A-416-08, A-440-10). It is also one of the conditions that may be cited by the employer as grounds for dismissal, even where no formal progressive discipline process exists. Employers may also be justified in terminating an employment because of habitual lateness. However, if the employer has tolerated tardiness/absences with no evidence of a final warning, the employee may not realize that a final incident of tardiness/absence is considered an action for which the employer may enforce a disciplinary action (Digest 7.2.5.2).
7.3.2 Insubordination
Insubordination may be defined in terms of a refusal or 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 if the refusal or disobedience can be explained by a serious and genuine misunderstanding not involving bad faith on the part of either party (A-440-83). The same can be said when it is apparent that a personality conflict between the employee and the employer caused 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. What should be considered in this case 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.
7.3.2.1 Refusal to perform certain duties
When an employee refuses to perform duties that are normally part of the job, it may be considered as 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, grievance procedures. In other words, the employee must try to avoid provoking dismissal by a refusal (A-200-09).
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 own or 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 jeopardizes 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 the legitimacy and reasonableness of 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. The claimant must provide a reasonable explanation to justify the refusal. Therefore, when the additional duties present a real danger, misconduct will not be concluded if the employee's refusal to perform these additional duties was based on a real fear for their hreasons for the refusealth, physical integrity or life, as opposed to stubbornness or lack of desire.
7.3.2.2 Refusal to carry out an order or instruction
Refusal to obey or comply with a legitimate and reasonable order or instruction from the employer may constitute misconduct.
The officer must try to determine whether the order or instruction was reasonable and whether it contravened any legal statutes or provisions of a collective agreement. It is appropriate to question whether the claimant could have made use of channels provided for under a 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 their supervisor's orders. If the claimant contends the order or instruction was unreasonable, they must provide explanations in support of that contention and show why other channels were not used to voice their disagreement (CUB 71069).
7.3.2.3 Refusal to work overtime
Working overtime is a common and necessary practice in the working world. Business fluctuates and it may not be prudent to increase staff to accommodate busier times. Annual vacations and leave for medical reasons can also create a need for overtime in the workplace.
It is not, however, reasonable to require a person to work an excessive amount of overtime, especially if this is an ongoing practice. It is also not reasonable for the employer to expect employees to do this additional work without compensation. Different employees may be capable of different amounts of overtime, and this should also be taken into consideration. An individual with health problems or an older worker may not be able to work the same number of overtime hours as a younger or healthier employee. In situations such as this a medical from a physician stating the employee is unable to perform long periods of overtime would be sufficient to determine a refusal to work overtime did not constitute misconduct and to allow benefits.
The employer should also try, if possible, to give some notice when overtime is required, to allow employees with obligations outside the workplace to make necessary arrangements in order to stay late or work weekends.
In principle an employee does not have the right to refuse to comply with a reasonable request by the employer unless the collective agreement or contract of employment stipulates that the employee’s consent is necessary in such circumstances.
If the claimant alleges the employer’s request was in violation of the collective agreement in that the required period of notice was not given, or alleges that it was impossible to agree to the overtime in question, the claimant must demonstrate the validity of the allegations against the employer and provide the reasons for the refusal (CUB 72118).
In the situation where a claimant chooses to quit rather than wait to be dismissed for refusal, then the matter must be viewed in terms of voluntarily leaving employment and adjudicated according to the provisions in Chapter 6 of this Digest.
7.3.3 Hostile behaviour
If a claimant has been dismissed for hostile behaviour, all facts pertaining to the incident must be obtained in order to ascertain whether the claimant’s actions which led to dismissal, constitute misconduct.
If at all possible, relations between the employer, employees and clients must be maintained in a healthy and harmonious atmosphere. The specific roles of each person must be clear in order to avoid disruptions and disorganization in the place of employment.
All interactions within the workplace should be conducted in a respectful manner, whether with the employer, co-workers, clients or the general public. The conduct should not offend, harass or provoke anyone.
7.3.3.1 Disrespectful conduct
Respect, or lack thereof, can vary depending on the persons involved. One may find a particular attitude offensive while another might see the behaviour as insulting and another may not be bothered by it at all. In making decisions in this area it is important to be aware of the complexity of human relations, especially in view of our multi-cultural society. Different cultures may view the same behaviour in a different light. It is important to keep the facts in each case related to the opinions voiced by those involved.
Lack of respect may take many varied forms. Insolence, impertinence, impoliteness, coarseness, insults and threats can have different effects depending on the attitude taken or the words spoken. The actions may offend, abuse, or provoke the employer, co-worker or client.
As a general rule, attitudes, behaviours or remarks that have the result of being offensive may be viewed as misconduct. Before reaching such a conclusion however, one must consider what circumstances led to the action and how those actions may be viewed by the other person involved. Did the actions constitute a genuine offence incompatible with carrying out the duties for which the person was hired? Did the actions result in the employee failing to meet a condition of employment? Was there wilfulness and intent to be disrespectful? Was the comment something that is commonly made but could be taken as an insult due to cultural differences between the persons involved?
7.3.3.2 Acts of violence
The cause of acts of violence that happen either at or outside the workplace must be assessed before a decision of misconduct can be taken. The act itself does not always lead to a conclusion of misconduct.
Details to consider when acts of violence lead to the dismissal from employment would be:
- Was there physical injury? If so, what led up to it?
- Were threatening remarks made?
- Was there aggressive, hostile or menacing behaviour that created a reaction of violence?
- Was property intentionally damaged?
- Were weapons involved?
- Was the violence a form of retribution for acts committed against the individual?
As always, an officer will consider whether all reasonable alternatives were exhausted. If this was an ongoing issue, did the claimant speak to their supervisor/employer/union representative? The facts gathered must provide the rationale behind the behaviour. The facts should explain why the claimant felt that violence was the only alternative.
Acts of violence may constitute a reaction to a disagreeable climate between individuals and are typified by acts of physical assault on another person (A-33-13, A-184-13).
Acts of violence may constitute misconduct. A conclusion of misconduct must nonetheless be based on careful consideration. For example, after asking for protection from their employer, the claimant may have been provoked and forced to defend themselves.
When the acts of violence were committed outside of the workplace, their cause and subject must also be assessed. Misconduct should be concluded where the infraction results in a breach of a condition of employment and has led to the dismissal (A-1342-92). The fact that the claimant may regret their actions and apologize thereafter is not relevant to whether the conduct constitutes misconduct (A-592-06).
7.3.4 Breach of rules
An employer has the right to establish the rules in an employment relationship, as long as they comply with any legal requirements set out by legislation (provincial and federal labour laws or immigration laws, for example) and those set out in a collective agreement.
An employer may find an employee’s behaviour reprehensible and consider that behaviour as misconduct. The Commission examines the inherent value of the rule, its importance in the workplace and how violating the rule adversely affected the employer. The Commission will determine whether the behaviour for which the claimant was dismissed truly damaged the employment relationship beyond repair. This is decided based on an objective analysis of the facts.
The Commission’s decision on whether or not misconduct occurred does not reflect on the employers’ rights in managing their business. Although the employer may have been justified in terminating the employment, the Commission may not bring a finding of misconduct. The law only requires the Commission examine the employee’s conduct to determine whether the claimant understood the risk to the job when the alleged misconduct occurred.
A breach is described as a violation or infraction, a failure to observe the terms, a non-fulfilment of a promise or contract, a breaking up of friendly relations, a disagreement, a failure to carry out an obligation and other similar terms.
Breaches of established work standards, instructions, rules or regulations of the employer or the collective agreement may constitute misconduct. Some of the rules or regulations may be contained in a written document; they may have been verbal instructions or just reasonable expectations of the employer. If a breach has been made which led to the termination of the employment it is up to the claimant to justify the conduct or to show that the requirement was unreasonable.
Failure to report a co-worker for misconduct in the workplace can be considered a breach of rules/code of conduct, and could lead to dismissal for misconduct (A-138-01).
An offence committed outside the workplace may constitute misconduct and lead to dismissal where the infraction makes it such that the employee no longer meets the conditions of employment.
An error attributable to intense pressure at work or inexperience does not amount to misconduct unless it is wilful or the result of unwillingness.
Unless there is clear negligence or dishonesty, it cannot be said that an error of judgment in decisions made or actions taken in the course of employment constitutes misconduct.
7.3.4.1 Dress and appearance
How a person dresses for work can depend in part on the type of establishment and type of work a person does. If the job requires a uniform, then the obligation is to report to work dressed in the authorized manner. If there is a guideline in place that the uniform not be worn in public, then the employee should adhere to this practice and change out of the uniform prior to after-work activities.
Employers may have requirements with respect to 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.
Common sense dictates that an employee represents the employer when at work. If an employee is in contact with clients, unacceptable clothes might include controversial logos, phrases or pictures, soiled, worn out or torn garments, clothes that are too revealing or outfits that are too dressy. In general, clothes designed for sports, the beach or fancy parties may not be suitable for the workplace. If a claimant has been dismissed for wearing such attire to work, to consider misconduct an officer will obtain facts on whether the claimant knew the clothes were unsuitable, or if they had been previously advised to stop wearing similar outfits, etc.
As a rule, a breach of 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. For the purpose of determining entitlement to benefits, a claimant is not justified in choosing to be unemployed rather than comply with a reasonable request or requirement from the employer.
7.3.4.2 Safety rules
Many sectors of the workforce have specific safety rules. These rules can be initiated by the employer, provincial or federal safety laws. They can be specific such as wearing safety glasses or boots, prohibiting the use of certain dangerous products or materials, or setting out guidelines for the transportation of certain types of dangerous 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 there was misconduct. There is clear misconduct if 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 (CUB 53681, CUB 73893). There may be no misconduct if the breach was negligible, not habitual and no real danger was involved.
Where a specific responsibility demanding careful attention has been entrusted to an employee, that person must ensure, and not simply assume, that it is properly carried out. It may be that the breach was 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. For EI purposes there is misconduct only if the claimant was personally guilty of the breach or for the incidents.
In high risk sectors (air traffic, nuclear plants etc.) a board is often appointed to inquire into the circumstances surrounding the violation of a safety regulation. The finding of the board does not affect the decision of the Commission. It is necessary to carefully analyze all relevant information to determine whether the actions or omissions attributed to the claimant constitute misconduct within the meaning of the EI legislation.
Finally, there may be no misconduct if a person concerned with safety rules refuses to drive a vehicle or use a piece of machinery because of a real or perceived serious threat to health or safety. If there was a serious motive for the refusal, as opposed to capriciousness or simple conflict with the employer and in the circumstances there were no other reasonable alternatives, then there may not be a conclusion of misconduct.
7.3.4.3 Impairment and addictions
Situations may occur where the claimant and/or the employer will indicate that the incident that resulted in dismissal was brought about by the claimant’s problem with, or addiction to alcohol, drugs or gambling. While such addiction is recognized as an illness, jurisprudence has held that it does not exempt the claimant from their obligations with regard to their employment, nor does it excuse the actions which violated the contract of employment.
Ultimately, only expert evidence which clearly and unequivocally establishes that the claimant themselves could not form any intent may be accepted as an excuse. This evidence would have to be very strong and show that the problem/addiction (i.e. alcohol) prevented the claimant from having any wilful thought. This evidence will probably only occur in rare instances.
The employer may have no alternative but to dismiss the employee. If the claimant lost their job because they failed to show up for work as a result of an addiction, there is no doubt that they lost the job due to their own misconduct (A-255-03).
An assertion of having an addiction does not in itself negate wilfulness and cannot be successfully used as justification to exonerate the claimant from misconduct. It is the consequence of this behaviour and how it affected the employment contract that must be assessed and weighed to ascertain if misconduct was present.
Numerous incidents can develop in the context of excessive consumption of alcohol or flow from problems caused by addiction which affect a person’s relationships at work (A-85-06). The particular offence (i.e. absence from work, insubordination, hostile behaviour, breach of rules) must be dealt with in the same way as with any other claimant.
Workers have rights under the law, but they also have obligations. Guidance found in the pertinent sections of this chapter, such as absence from work (A-315-05), insubordination, hostile behaviour and breach of rules should be applied.
7.3.4.3.1 Alcohol
It can generally be said that every contract of employment includes an implied prohibition against the consumption of alcohol 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 where alcohol is served.
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 particularly relevant if the nature of the employment is such that any consumption of alcohol is banned or not appropriate, such as for someone who drives a public vehicle or is a police officer or truck driver.
The use of alcohol may not take place on the worksite but still may affect the ability to carry out work duties. The situation where a person presents themselves at work in an inebriated state and cannot adequately carry out their duties could constitute misconduct.
Alcoholism cannot excuse a claimant for actions amounting to misconduct and leading to dismissal. It is irrelevant whether alcoholism is a “addiction” or whether the employer should have accommodated the claimant (A-213-09).
For example, where a claimant was dismissed for absenteeism, it was decided that without evidence of the absence of wilfulness, the repeated failure to report to work as a result of alcohol consumption is voluntary behaviour done consciously and with the knowledge of the effects and consequences this consumption could have on the employment.
7.3.4.3.2 Drugs
More and more companies are introducing drug testing policies for reasons of safety to their employees, customers or the general public. These policies often require that employees who test positive for the use of illegal drugs be terminated. The level of drugs found in the employee’s system is often not a factor because many companies have a zero tolerance policy. These tests are usually administered as a condition of employment, during the probationary period or at random during the employment. The fact that the drug use may have occurred prior to the start date of employment is irrelevant. Loss of “any employment” as a result of the misconduct, which is not limited to the employment occupied at the time of misconduct, is still misconduct under the Act (A-239-06, A-875-96).
The fact that some people use substances such as illicit drugs, or that some people misuse prescription drugs is not new. Awareness that the abuse of substances may affect the workplace just as the workplace may affect substance abuse is, however, growing. Many aspects of the workplace today require alertness as well as accurate and quick reflexes. Employers may dismiss an employee due to the fact that drugs impede these qualities, which may cause serious accidents and interfere with the accuracy and efficiency of work. It is not the act of taking drugs that is the cause for the dismissal, but the effects of taking drugs on the ability to fulfill the conditions of employment, that are the reason for the dismissal and the finding of misconduct.
It is important to conduct in-depth fact-finding and present relevant documentation in decisions of misconduct to ensure the burden of proof that the claimant lost their employment due to their misconduct, is met (A-135-01, A-72-02).
7.3.4.3.3 Gambling
The effects of a gambling problem may spill over into the workplace, primarily through lost time, lost productivity, and in desperate situations, the gambler may resort to theft.
Individuals with gambling problems can become completely pre-occupied with gambling. The workday can be spent in the act of gambling, planning the next gambling opportunity, or plotting to get money for gambling. Any of these activities may breach the employment contract.
As a result of the lost time, a company's productivity is often damaged. The gambler becomes unreliable, misses project deadlines and important meetings and produces inferior quality work. Employees with severe problems may commit theft, fraud or embezzlement (CUB 54535). If a claimant has been dismissed due to a gambling problem, the employer most likely has background and facts to support their decision. Again, it is not the gambling alone that causes the dismissal, many people gamble and their work is not affected. It is the result of the gambling addiction on the workplace which leads to the dismissal that must be considered when reaching a decision of misconduct.
The Commission, as in all cases of misconduct, must look at the claimant’s explanations for their actions. If the claimant had been leaving work early to gamble, then the issue would be addressed similarly to other persons in the workforce who are absent from work without permission.
Some of the issues associated with unreliability and inaptitude can be found in the section on dereliction of duties.
In each case the facts must support the conclusion that misconduct was involved and the claimant would have had to be aware of the effects this would have on their job (A-381-85, A-1342-92).
Gambling, like any other addiction, should not be used as an excuse to avoid a finding of misconduct. There is a strong possibility that a person who loses their employment as a result of behaviour associated with an addiction may not be entitled to EI regular benefits (A-255-03).
7.3.4.4 Dereliction of duty
An employment contract can be broadly defined as an agreement between employer and employee assigning payment and benefits to the employee in exchange for services. This 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 labelled 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 a breach of a condition of employment leading to the dismissal.
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 belonging to the employer without authorization, or taking money from the employer's till without authorization, even if intending to later replace it (CUB 76342).
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 wilful or the result of unwillingness to abide by the employer’s rules or procedures (A-337-07, A-64-06). The fact that other employees could be guilty of the same misconduct and not be dismissed is irrelevant.
In addition, unless there is clear negligence or dishonesty, an error in judgment in decisions made or actions taken in the course of employment may not amount to misconduct.
Depending on the nature of the dishonesty, a false statement made at the time of applying for work cannot generally support the conclusion that the loss of employment was due to misconduct. The Commission will examine whether the claimant would have had reason to believe that such a false statement would cost them their employment, if discovered. A simple misrepresentation as to where they lived at the time of application, would not affect performance at work, whereas a false statement that they had the required university degree or a clean driving record would constitute misconduct if the claimant knew these conditions were required for the position. The same false statement about a clean driving record may not constitute misconduct if the claimant was applying for a cashier position and had no expectation that the driving record would affect their ability to do that job and wanted to appear more responsible to the employer.
7.3.4.5 Misuse of company resources
An employer has a certain expectation that employees will conduct themselves in an ethical manner within the workplace. Employees are expected to use good judgment in the use of company resources. Any personal use of company resources should not incur significant added costs, disruption of business processes, loss of work performance or any other disadvantage to the employer. Use of company resources for non-company purposes is appropriate only when specifically authorized by the employer.
Employees can unknowingly compromise the security and integrity of the employer through the improper use of company equipment. To conclude misconduct, the claimant would have had to be aware that they were misusing the equipment or resources but chose to do it anyway.
Misuse of company resources can have many different forms. It may be by making unauthorized long distance telephone calls (CUB 40938, CUB 27984), using company equipment for personal use or submitting inaccurate expense accounts (CUB 68295, CUB 75036). Taking gifts from customers or suppliers in return for using their services or purchasing their equipment or products is also a misuse of company resources.
7.3.4.5.1 Computer, internet and email
Employees at work should be using the office equipment for the sole purpose of conducting company business. The use should not interfere with the performance of business, the employee’s assigned duties, and should not adversely affect the performance of the employee.
E-mail in the workplace is not intended to be used for external broadcast messages or to send or post chain letters, messages of a political or religious nature, or messages that contain obscene, profane, or otherwise offensive language or material (CUB 75946, CUB 71685). Employees may use E-mail to send messages with union-related content only with approval of management.
Equipment, such as computers and copiers, are provided for the conduct of company business. The company may incur costs based on the rate of use of such equipment. Personal use of a company system or network for any purpose except in accordance with company policy and procedure can be grounds for dismissal for misconduct (CUB 70558). If the employee requires the use of the computer to conduct personal business, permission should be sought from the employer before doing so. In addition, such use should not be on work time.
7.3.4.5.2 Credit cards
Many employers issue credit cards to their employees for conducting day to day business.
Loss of employment for inappropriate use of company credit cards could constitute misconduct. Some examples of misuse might include using the credit card to cover private expenses; private telephone accounts including internet/broadband services; purchasing gasoline for personal vehicles; personal professional association membership fees; travel costs when the claimant is to receive a per diem or specified travel advance; withdrawal of cash /cash advances for personal expenditures
Common sense dictates the charges for which the credit card can legitimately be used. Many companies will have a written policy, but smaller employers may have a verbal discussion regarding the uses for which the credit card is approved. An innocent charge for a small amount, (ex. dry cleaning charges required for clothing while travelling,) would not necessarily be considered by the claimant as an action which could cause the termination of their employment, although it is definitely a personal expense. All details of the incident causing the dismissal must be obtained before a determination of misconduct can be made.
7.3.4.6 Criminal charges and offences
Jurisprudence has held that when a criminal offence constitutes the event that brought about the severance from employment, the fact that charges have or will be laid is not sufficient to prove that misconduct exists (A-130-96, A-1342-92, A-517-91, A-42-13).
Fact-finding in cases of criminal offences may be particularly challenging when adjudicating a claim for benefit.
The Commission does not have to await the result of a police investigation or decision of the criminal court before making a decision, nor is the Commission bound by the findings of either.
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 misconduct. It is not unusual in this type of case to have 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.
The Commission’s decision is based on the information gathered from both the claimant and the employer. There will be a reasonable search for the pertinent facts. This is not an intensive investigation to demonstrate beyond any doubt that the person was or was not guilty of the infraction, nor is there an exhaustive interrogation. These roles belong to the Crown and other tribunals of competent jurisdiction, and not to the Commission.
Both the claimant and the employer must be:
- asked for their account of the incident that gave rise to the claimant’s dismissal
- able to describe from their own perspective, the circumstances surrounding the incident that led to the dismissal, and clarify any contradictions
- made aware of the fact that the Commission’s decision to pay benefits or not, will be made on the basis of the information provided
The employer may be reluctant to divulge certain relevant information, or may possess little information when the offence occurred outside 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 an assumption that the employer must surely have had good reasons for dismissing the claimant.
When faced with insufficient or ambiguous information the decision will rely on the balance of probabilities, on what seems most likely, based on all of the credible information obtained.
The Commission’s decision may be revisited once the courts have rendered judgement, if the claimant or employer request that the decision be reconsidered. When the Commission has ruled “no misconduct” it is the Court’s reasons for the guilty decision or plea that will be considered. These reasons may bring to light new facts never presented to the Commission and may result in a review of the decision. However, if all the facts were before the Commission and the officer originally concluded no misconduct, that decision cannot simply be changed because the claimant was found guilty, based on those same facts. Likewise, if the decision was “misconduct” and the claimant is acquitted rather than found guilty, the decision may be reconsidered but there is no obligation to do so.
Withdrawal of a charge in criminal proceedings often simply means the Crown lacks sufficient evidence to incriminate the claimant beyond any reasonable doubt. Misconduct within the meaning of the EI Act is determined on the basis of the balance of probabilities, which is much less stringent.
The offence which constitutes an infraction or a criminal act which results in a conviction under the Criminal Code would be misconduct resulting in a disqualification when it led to a dismissal because the employee could no longer meet the conditions of employment.
Claimants who are jailed or imposed a conditional sentence of house arrest (CUB 66756) and subsequently dismissed by the employer as they are not able to provide services, are considered to have lost their employment by reason of their own misconduct (A-1342-92).
Having a record of convictions can be a serious obstacle for individuals seeking employment. As a result, it is fairly common for someone not to reveal the existence of a conviction record when hired. If the employer later learns about this record and decides to dismiss the worker solely for this reason, once reviewed, the separation may not be considered to be misconduct for EI purposes.
7.3.5 Incarceration
When incarceration is involved and the officer is not sure whether it should be addressed as misconduct, voluntary leaving, or a leave of absence the issues to keep in mind are as follows.
If an employer takes the initiative to terminate an employee’s contract when wrongful conduct results in the employee being incarcerated and thus unable to show up for work, the resulting loss of employment is attributable to misconduct. The claimant is fully responsible for the breach of the employment as it is because of their own actions that they can no longer report to work (A-338-03).
If the claimant ceases to show up for work because of incarceration and the employer takes no initiative, the loss of employment that eventually results is attributable to voluntary leaving without just cause. Imprisonment results from deliberate actions by the claimant, which in turn results in the fact that the claimant is no longer able to appear for work. This does not constitute justification for the loss of employment.
When the claimant ceases to show up for work because of incarceration and makes arrangements with the employer for a leave of absence during the incarceration, the issue should be dealt with like any leave of absence with the appropriate disentitlement being imposed.
7.3.6 Loss of driver’s licence
In cases where an employee whose job involves driving has their licence suspended due to charges of impaired driving under the Criminal Code of Canada, they are no longer able to fulfil the requirements of their job. If the employer is not able or not willing to assign other work to them, the employer would have no choice but to dismiss them. This would constitute misconduct as the claimant knew that they required a licence to do their work. In such a case, it would be considered that:
- the decision to drive while intoxicated was deliberate
- the decision to drive, knowing that one could be in violation of the provisions of the law was deliberate or so reckless as to approach wilfulness
- the misconduct led to the loss of the driver’s licence
- by losing the driver’s licence the employee breached an express obligation of their work contract
- this breach resulted in the loss of employment
- there is a causal relationship between the misconduct and the dismissal
It is the act (driving while impaired, reckless driving) that constitutes misconduct and not a conviction of a driving offence.
The Commission can meet the burden of proof by providing proper evidence. It is not enough to show that the driver’s licence was suspended. This must be supported by the appropriate provisions of provincial or territorial legislation.
Evidence collected should show that (A-444-02)
- the claimant committed acts that constitute an offence under a provincial or territorial statue
- the requirements of the suspension of the drivers licence were met, thus the acts committed constitute misconduct
- the claimant lost their licence because of the misconduct (driving while under the influence of alcohol etc.)
- the claimant can no longer meet an essential requirement of their employment as they do not hold a valid driver’s licence
- these facts led to the loss of employment
A copy of the relevant provisions of the highway safety code dealing with the suspension of the driver’s licence must be attached to the file, along with a copy of the notice of suspension or the record of proceedings. The claimant is able to provide such information because provincial legislation requires the police to provide the driver with a document at the time the licence is suspended. Should the claimant refuse to provide the information requested because they feel that it could be detrimental to them, a disentitlement can be imposed for failure to provide information requested by the Commission.
If a person loses a driver’s licence for impaired driving, the loss of the licence arises from the offence committed (A-444-02, A-126-03).
If a person loses a driver’s licence for neglecting to pay traffic fines, the loss of the driver’s licence does not arise from the offence that resulted in the fine, but rather from non-compliance. Failure to pay traffic fines and particularly the accumulation of unpaid traffic tickets or failure to comply with a court order reveals deliberate, reckless or negligent behaviour on the part of the claimant. The loss of employment is due to the fact that the employee is no longer in a position to fulfill the conditions of the employment contract (A-720-01, A-72-04).
If a person loses a driver’s licence for neglecting to pay child support, the loss of licence does not arise from an offence, but rather from non-compliance with a court order (A-666-02, A-78-04).
If the loss of licence is due to non-compliance with a court order it is possible for a person to prove justification by showing that they used every avenue available to them for assistance, that they were neither negligent nor reckless with regard to their obligations and were not defiant toward judicial authorities. All factors must be considered before determining if misconduct exists.
There may be situations where an employer decides to suspend an employee due to loss of their driver’s licence, allowing them time to enquire about re-acquiring the licence. At the time of the suspension, depending on the facts on file, a finding of suspension for misconduct may be made. If so, a disentitlement is imposed.
If the employee, upon their return to work after re-acquiring their licence, is dismissed by their employer due to the loss of their driver’s licence, a finding of misconduct cannot be made (A-90-07). As indicated earlier, the Commission cannot make a finding of misconduct if an employer initially imposes a milder punishment and later decides to dismiss the employee for the same infraction.
The Commission will need to collect information from the claimant concerning the reasons they failed to comply with the court order and what alternatives were available to them. Was there any assistance available to individuals who are unable to pay a fine or fulfill a commitment due to financial difficulties? If the claimant raises financial difficulties as justification for their non-compliance, the fact finding should not just focus on the claimant’s financial situation, but also on what measures or arrangements the claimant made, or could have made, to obtain more time to make the payment, thereby preventing the loss of the driver’s licence. Should it have been possible for them to make arrangements, then their financial situation alone cannot be used to make a finding that misconduct was proven (A-72-04).
7.3.7 Unlawful union activity
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 will not be held to be misconduct.
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 obligation as all other employees; to accept the direction of the employer with respect to the performance of the job (A-683-86).
It is not unusual for a claimant to allege that a 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 no unlawful activity was involved, the probability is that other grounds for dismissal may have been cited the employer (CUB 76348).
These potentially conflicting positions regarding the reasons for dismissal make it challenging to search for facts and determine the credibility of statements made. There must be a clear causal connection between the misconduct and the dismissal. If misconduct is used as a simple excuse or pretext for dismissal that is actually for another reason, no disqualification will be imposed. The misconduct must be the cause for losing the employment, to result in a disqualification.
Finally, participation in an illegal strike does constitute misconduct by the claimant involved, even if such misconduct involved several employees. The misconduct of which an individual is guilty is still their misconduct for the purposes of the legislation.
[ August 2023 ]
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