Digest of Benefit Entitlement Principles Chapter 7 - Section 1

7.1.0 Introduction (A mixed question of law and fact)

Employment Insurance benefits are intended to provide temporary financial assistance to those who, through no fault of their own, become unemployed.

Under the Employment Insurance Act a claimant who has lost their employment by reason of their own misconduct is disqualified from receiving benefits. Likewise, those who are suspended from employment due to misconduct are disentitled from receiving benefits.

A finding that misconduct led to the separation from employment will therefore prevent a person from receiving regular benefits for all weeks of the benefit period for which benefits would otherwise be payable following the waiting period.

Given the severity of the consequences, a decision to disqualify or disentitle a claimant because of their misconduct is only rendered after comprehensive and well-documented fact-finding has been conducted, to fully support the decision.

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 general, misconduct refers to ill-intentioned actions by an employee; actions that are incompatible with the reliable and suitable carrying out of the duties for which the employee was hired. These are actions that result in the person who worked for an employer and committed these infractions, no longer meeting the expressed or implicit conditions of employment or work.

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 outside of work could amount to misconduct, if the infraction was such that the conditions of employment were no longer met, and it led to the dismissal.

While this is not an absolute principle, it can also be said that in order to constitute misconduct, the actions or omissions alleged must have been voluntary or willful or of such a careless or negligent nature that one could say the employee willfully disregarded the effects their actions would have on their ability to fulfill the conditions of their employment. Misconduct involves the claimant's own behaviour, or responsibilities for which they were personally accountable. Association with a group of individuals is not incriminating in itself, but group misconduct does not relieve the individual of the responsibility for their actions.

The question of whether or not a particular action or omission of an employee is covered by the interpretation given to the word “misconduct” by the courts is a question of fact, which will be dealt with in later sections. The legal test to determine whether a finding of misconduct can be made is then applied to the facts of the case. Misconduct is thus a mixed question of law and factFootnote 1.

It is not appropriate to question whether the employer was right or wrong to dismiss or suspend the claimant, or whether the alleged misconduct was sufficiently serious to justify the employee’s dismissal or suspension. It is the facts of an individual case which decide whether the claimant’s actions or omissions constitute misconduct under the EI Act, and whether or not the employment was lost by reason of that misconductFootnote 2.

When the claimant denies having committed the action or omission alleged by the employer, Commission agents must obtain, from the employer, evidence that the claimant did in fact commit the act or omission, or evidence that the claimant admitted to it. The claimant must then be advised of the employer’s statement and alleged reason for dismissal and be given the opportunity to rebut the evidence provided. Finally, the Commission will have to demonstrate that the alleged action or omission is directly connected to the dismissal and that it constitutes misconduct under the ActFootnote 3.

In summary, what must be determined is:

  • Whether the claimant lost their employment because of the alleged offence (action or omission);
  • Whether the claimant committed the alleged offence; and
  • Whether the alleged offence constitutes misconduct.

The sections which follow further describe the process for making these determinations.

7.1.1 Legislative authority

Budget 2021 measures alert – Temporary measures are in place from September 26, 2021 to September 24, 2022 which affects the following information:

  • only the last reason for separation (employment before the initial claim for benefits with the latest last day paid) or any employment within the benefit period requires adjudication if the reason for separation is contentious

The authority related to the Commission’s treatment of misconduct is found in the EI Act. While sections 29 and 30 of the Act are those that are primarily used when adjudicating cases of misconduct, the following is a list of related sections of the Act.

EI Act

Subsection 29(a) – defines employment (Subsection 2(1)) also defines employment).

Subsection 30(1) – provides that a claimant is disqualified from receiving benefits if they lost any employment because of their misconduct unless (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.
Subsection 30(2) – defines the length of the disqualification.

Subsection 30(3) – explains that a disqualification is effective from the week of the event.

Subsection 30(4) – provides that the disqualification will be suspended during any week for which the claimant is otherwise entitled to special benefits (sickness, maternity, parental, compassionate care or family caregiver benefits).

Section 31 – provides that a disentitlement is imposed if a claimant is suspended due to misconduct. It also provides details on the duration of the disentitlement and the conditions to end it.

Section 33 – provides for a disentitlement if a claimant loses their employment due to misconduct within three weeks of an anticipated loss of employment.

Section 34 – provides that a disentitlement under sections 31 to 33 is suspended for any week in which the claimant is otherwise entitled to special benefits.

Subsection 49(2) – requires that the Commission give the benefit of the doubt to the claimant if the evidence submitted by the claimant and the employer is different but equally credible.

Section 51 – states that the Commission is obligated to give both the claimant and the employer the opportunity to provide information as to the reasons for the loss of employment in order to gather the facts necessary to make a decision.

7.1.2 Effect of a disqualification

When all the facts have been collected and documented and the adjudicator has decided the dismissal was due to misconduct, an indefinite disqualification is imposed to prevent payment of employment insurance benefits.

7.1.2.1 Indefinite disqualification

An indefinite disqualification begins with the week in which the dismissal due to misconduct occurred. It continues for the length of the claim unless the claimant meets one of the conditions of relief listed below. An indefinite disqualification can be suspended or rescinded but never terminated.

If the misconduct occurred within 3 weeks of the anticipated end of a term of employment Section 33 of the Act is applied. In these cases a definite disentitlement is imposed. The disentitlement lasts until the end date of the contract of employment or to the date of a pre-determined lay-off.

7.1.2.2 Relief from disqualification

If a claimant receives relief from a disqualification, the disqualification is still present but is suspended while the situation that gives relief exists.

If a claimant is disqualified due to misconduct and requests special benefits (maternity, parental, sickness, compassionate care, family caregiver benefits), the disqualification is suspended during the period for which the claimant is otherwise entitled to special benefits.

7.1.2.3 Re-Qualifying for benefits

If, since the dismissal due to misconduct, a claimant has accumulated a sufficient number of hours of insurable employment to establish a claimFootnote 4, a new benefit period can be established free of disqualification.

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