Digest of Benefit Entitlement Principles Chapter 7 - Section 2

7.2.0 A three-step process

The legislation authorizes the payment of benefits within the framework established by the Act, Regulations and jurisprudence. It is the responsibility of a Commission officer to adjudicate the reason for separation in order to determine entitlement to benefits.

In finding that a claimant has lost their employment by reason of misconduct, the Commission must show beyond the balance of probabilities, that the action for which the claimant lost their employment is the same action that caused the claimant to no longer meet a required condition of employment. To support a finding of misconduct and uphold the imposition of a disqualification, the action must be the real reason for the dismissal and not just an excuse. The officer's decision is not arbitrary, nor is it based on assumptions or vague allegations. To determine entitlement, the officer follows a specific process involving three steps:

1. gather relevant information from various sources (including the employer and the claimant)
2. evaluate the evidence without prejudice
3. make a decision based on the weight of evidence

7.2.1 Step one: Gather relevant information from various sources

It is the Commission’s responsibility to gather all of the information required to determine whether or not the claimant lost their employment by reason of their own misconduct. In doing so, the Commission shall, as specified in section 51 of the EI Act:

1. give the claimant and the employer the opportunity to provide information as to the reasons for the loss of employment
2. if the information is provided, take it into account in determining the claim

The officer's role is to gather all the relevant information so a decision can be made within the legislative framework required without delay. This means that all interested parties are given the opportunity to provide information on the reasons for the separation, and to rebut the version provided by the other party, if necessary.

The first statement regarding the reason for separation often comes from the claimant when providing information on their application for benefits.

Fact-finding by the officer with the employer will then take place to obtain the employer’s version of the reason for separation. This will be followed with a rebuttal or clarification by the claimant, if necessary, or even fact-finding with anyone else who may be able to shed light on the loss of employment. Naturally, to the extent possible, the information will be sought from those directly involved or eyewitness to the events, particularly if there are discrepancies between versions already obtained.

For example the employer’s bookkeeper may have completed the ROE and be identified as the point of contact, when in reality the bookkeeper completed the form at the direction of the person who actually dismissed the claimant and the bookkeeper’s information is only indirect.

The officer will adapt their fact-finding to the specific circumstances of the case; for example, if there are indications the dismissal was related to trauma or incidents resulting from harassment, abuse or violence. The Commission’s policy in such a situation is to offer the claimant the opportunity to speak to an officer of the same gender to provide the information needed for processing the claim.

An officer must not expect an alleged 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 approach that lends itself to supporting a claim for EI benefits.

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

The officer will ask the employer to provide 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 the officer reveal to the employer the account given by the claimant unless the claimant agrees to such disclosure or the employer mentions the details specifically.

Both employers and claimants alike are expected to act in good faith and submit evidence in support of their allegations.

The statements of both the claimant and employer are reviewed and compared. Any discrepancies, contradictions, or additional information given or required are noted. The other party (claimant or employer) is then given the opportunity to respond. Final rebuttal will always be given to the claimant. There must be no allegations on file that have not been presented to the claimant with an opportunity for explanation or clarification.

The officer cannot guarantee confidentiality to the person providing the information. They can, however, stress that the legislation provides that any person who gives the Commission written, oral or documentary evidence required for the proper determination of the entitlement to benefits, the giving of the evidence is an occasion of qualified privilege (EIA 129).

The Commission must not rely on this specific provision as a means to obtain facts. The officer must never offer advice as to whether this provision would protect the information provided, in any specific case. If the person providing the information wishes to seek legal counsel regarding the applicability of this provision prior to releasing the information, a reasonable period of time will be allowed.

While a disentitlement due to lack of information can be imposed, this should be considered only as a last resort when reasonable attempts to obtain the relevant information have been unsuccessful. A disentitlement must never be imposed when a claimant has acted in good faith and frankly disclosed all the information they have. Even if the situation remains ambiguous, whether because the employer chooses not to disclose certain facts or the employer's version is different, the officer relies solely on the balance of probabilities, with particular attention given to the credibility of the evidence (Digest 7.2.3).

7.2.1.1 Fact-finding with the employer

To determine whether or not a claimant was dismissed for reasons of misconduct, the employer is asked to provide the Commission with information concerning the reason for the termination of employment, specifying, among other things:

• what actions or omissions caused the employer to dismiss the employee; (i.e. their exact nature, context and background)
• why the employer felt that such actions or omissions warranted dismissal of the employee
• whether such action or omission violated a provision of the contract of employment or a policy or rule of the employer or an essential condition of the employment
• what information the employer relied on to conclude that the employee committed the action or omission in question (i.e. testimony, investigations, reports, other sources of information)
• whether the person in question had been previously informed of the employer's rules, policies, requirements or expectations
• what reasons the claimant gave for these actions or omissions
• if the employer became aware of such action or omission some time before dismissing the employee, and the reason for the time elapsed before the termination of employment (details of the dates involved should be obtained)

Criminal offences or violations of employment statutes do not generally give rise to different procedures or a different line of questioning for the fact-finding with regard to the termination of employment. In some instances, obtaining the appropriate information concerning a person's actions may prove difficult. The employer may, for example, be reluctant to provide information if a Court or labour arbitration decision is still pending.

The officer will make the need for detailed information clear to the employer, particularly with regard to the actions attributed to the claimant and in what context the incidents occurred. Unless a Court has ordered a publication ban, the employer should be able to divulge sufficient information without adversely affecting any action or proceedings against the claimant. For example, it is not necessary to provide all the details of an inquiry or the list of those named as witnesses.

In some instances the information at the employer's disposal may be limited, such as when the incident occurred outside the work place. A mere disclosure of the charges with no further detail does not generally provide enough information concerning the actions or omissions attributed to the claimant or the elements relied upon to conclude that the claimant committed such actions or omissions (A-130-96, CUB 76247). Depending on the circumstances, a newspaper article describing the events and the alleged involvement of a person may constitute a valid written form of hearsay where information or details cannot be obtained from persons with more direct knowledge of the events.

When the employer refuses to provide information related to the reason for separation, they are advised that failure to do so may result in the claimant receiving benefits.

7.2.1.2 Fact-finding with the claimant

The officer will ask the claimant for information regarding the reason for separation and provide the opportunity to rebut the employer’s statement by questioning, among other things:

• whether or not the claimant corroborates the reasons given by the employer for the termination of employment
• what the claimant has to say about the actions or omissions attributed to them and that are given as the reason for the dismissal
• whether or not the claimant was aware of the employer's rules, policies, expectations or requirements in this respect
• whether the claimant was aware that the action or omission could result in their dismissal (A-189-09)
• under what circumstances the action or omission attributed to the claimant occurred
• whether there were any witnesses or persons who could testify with regard to the events

There may be instances in which the claimant refuses to provide a reason for the separation or information concerning the termination of employment. Because the legislation requires that the claimant prove there are no disqualifying events surrounding the separation from employment, a refusal to provide such information may result in a denial of benefits (EIA 49(1), EIA 50(5)). This however should only be used as a last resort when all reasonable attempts to obtain the information have been unsuccessful.

7.2.2 Step two: Evaluate the evidence without prejudice

The officer will determine the credibility of the information by assessing what information is genuine, reasonable, plausible, and based on the facts, rather than mere presumptions, suppositions or opinions. Particular attention will be paid to the source of the information. Statements from someone with direct knowledge of events will prevail over statements from another who was not a participant.

Statements from the employer carry neither more nor less weight than those from the claimant. It is necessary to objectively examine all statements.

The information gathered should enable the officer to objectively ascertain the reason for the separation from employment, whether the actions or omissions attributed to the claimant are in fact more a pretext or excuse, or whether they are the direct cause of the termination of employment.

Only when the officer is satisfied that all the relevant information is on file and both the claimant and the employer have been given the opportunity to provide their statement and/or rebuttal, can the decision be made, regarding whether or not the claimant was dismissed due to misconduct.

The officer must determine the point at which the information ceases to be an issue of contradiction and becomes an issue of credibility or weight of evidence.

7.2.3 Step three: Make the decision based on the weight of evidence

Misconduct or the lack thereof, need not be proven beyond a reasonable doubt as is the standard for criminal law; rather, it is the ordinary civil law standard of the ‘balance of probabilities’ that is applicable under the EI Act. This expression has been defined as follows:

...evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it...With respect to burden of proof in civil actions, means greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability…It is that degree of proof which is more probable than not (Black’s Law Dictionary, 5th edition, 1979).

A decision to disqualify someone from receiving benefits may be made if the officer is able to answer yes to both of the following questions:

1. Does the information in the file support the finding that the claimant committed actions or omissions as defined by the interpretation given to the word “misconduct”?
2. Does the information in the file support the finding that the claimant lost their employment because of these actions or omissions?

7.2.3.1 Benefit of the doubt

Subsection 49(2) of the EI Act is very clear on the action to be taken if there is an issue of disqualification and the evidence presented by the claimant and by the employer are equally balanced: the benefit of the doubt is given to the claimant.

After gathering and evaluating the available information, the officer will decide in favour of the version of the facts which seems most credible given the circumstances. In some cases, the officer may feel that the accounts of the parties are equally credible, making it impossible to choose one version over another.

The benefit of the doubt is not given simply because there are contradictory versions of an incident or event. The officer must first determine whether or not one version is more credible than the other. If yes, the decision is made on the basis of the version of the facts the officer deems to be more credible. If not, the benefit of the doubt is given to the claimant.

The method to determine credibility is often based on the evidence. For example, if the employer has the names of five individuals who witnessed an altercation but the claimant alone disputes their version, the employer’s version of events would be considered more credible, as there is supporting evidence (CUB 76736).

It should be noted that the versions given by the parties, even if they appear contradictory, may not necessarily be incompatible with respect to determining the reason for the separation from employment. Contradictory versions may lead to the same decision about the reason for separation.

7.2.4 Elements to consider in a finding of misconduct

To establish misconduct, it must be shown

• (a) that the conduct in question constituted a breach of the employer-employee relationship
• (b) that the conduct was wilful
• (c) that there was a causal relationship between the alleged conduct and the dismissal
• (d) that the conduct alleged to be misconduct was not a mere excuse or pretext for the dismissal (CUB 41256, A-385-11, A-462-10)

Therefore the documented facts must establish that:

• there was a specific incident which served as a breaking point where the employee’s conduct resulted in loss of employment (dismissed or suspended)
• the conduct had a material and adverse effect on the employer
• the conduct constituted a breach in the employer-employee relationship
• the action was wilful and/or intentional on the part of the claimant; and
• the conduct was the real reason for the loss of employment and not an excuse or pretext

The term conduct in this context refers to personal behaviour. Conduct can be an action or omission, but is always voluntary. Conduct does not mean good or bad behaviour. It only means that the behaviour is intentional and not forced by external influence. Conduct is a behaviour over which an individual exercises control.

7.2.4.1 Incident as a breaking point

Evidence must show an identifiable incident in which the claimant acted or failed to act in accordance with the employer’s expectations or direction. Dissatisfaction or vague complaints about attitude or competence do not constitute proof of dereliction of duty or improper behaviour. Dismissal or suspension must occur in response to a specific incident, or, in the case of progressive discipline, a series of related events ending with a final incident.

7.2.4.2 Adverse effect

In order to arrive at a conclusion or finding of misconduct, the conduct alleged by the employer must directly affect the employment relationship, and it must somehow interfere with the employee’s ability to perform job duties. The alleged misconduct can take many forms. It might be as basic as affecting the employer’s ability to trust the employee’s intention to act legally and in the employer’s interest. It might also be very specific such as losing one’s driver’s licence when a valid driver’s permit is a requirement of the job.

7.2.4.3 Breach in employer-employee relationship

Any employment relationship can be called a contract between employee and employer. Whether written, verbal or unstated, this contract is an agreement about the duties and responsibilities each party owes the other. Each party must be able to trust that the other will fulfill those duties and responsibilities. It can be in the form of a nonverbal understanding, such as the employee expecting a pay cheque on pay day, or the employer expecting staff to arrive on time and stay until the end of the shift.

A breach of the employer-employee relationship may occur on either side of the relationship, or may be an event external to the employment. The simple existence of a breach does not mean there has been misconduct. Misconduct means the employee behaved in a manner such that the work relationship could not continue. One employer may tolerate a behaviour that is defined as misconduct under the case law, while another may not.

7.2.4.4 Wilfulness

Once the Commission establishes the existence of conduct that has caused a breach in the employment relationship for which the claimant is personally responsible, it must still establish the voluntary, knowing or wilful nature of that conduct. Wilfulness exists when the employee acted (or failed to act) deliberately. Wilfulness also exists when the action was so negligent or careless that it appears deliberate.

Wilfulness means that the evidence reasonably leads to the conclusion the claimant knew the conduct was prohibited or neglectful, but chose to continue the course of conduct anyway. It does not matter whether or not the claimant meant to harm the employer. Intent is irrelevant in a finding of wilfulness (A-296-03, A-51-10; CUB 55140). Wilfulness means only that the employee acted deliberately and without coercion. A finding of misconduct may be affected if there are other factors that explain or mitigate the behaviour (A-440-10).

7.2.4.5 Real reason for loss of employment (causal relationship)

It must be shown there was a causal relationship between the loss of employment and the final incident described by the employer and/or claimant.

A causal relationship means the employee was dismissed as a direct result of the alleged actions. There is a definite connection between what the employee did, or didn’t do, and the dismissal from employment. The Commission cannot make a finding of misconduct if an employer imposes a milder punishment and later decides to dismiss the employee for the same infraction (A-152-96). For example, if the employer suspends an employee for three days at the end of May, and then dismisses the employee for the same act (not a subsequent repetition of the same act) on July 31, it suggests there may be another reason for the dismissal. It would be difficult to prove the misconduct in May caused the loss of employment, even if all other elements required for a finding of misconduct are present. If the action occurred in May, but the employer did not learn of it until July, whereupon they immediately dismissed the employee, it is likely that the dismissal arises from the action. A delay may occur if, prior to the dismissal, the claimant was suspended following the incident while the employer conducted an investigation. In such cases, despite the delay, a determination of misconduct may be made.

Dismissal for cause is not the same as dismissal for misconduct. In both instances there may be a direct relationship between an action of the employee and a dismissal from employment (A-875-96, A-1342-92). Although the employer may be justified in ending the employment, a simple correlation of an action and dismissal does not in itself lead to a finding of misconduct.

Claimants may state the employer used an incident as an excuse to dismiss or suspend them from employment. If all the other elements of misconduct are present, the claimant’s statement alone is not enough to prevent a refusal of benefits. Employees whose conduct is undesirable are accountable for their behaviour. The employer may have taken advantage of the opportunity, but the Commission does not have to consider the employer’s other reasons for choosing to dismiss an employee. The only question is whether there was an incident of misconduct that resulted in dismissal (A-1040-87).

When the breach seems to be over a relatively small issue, or when there is a significant lag between the alleged event and the dismissal, there may be other matters at play. Fact finding must secure evidence to establish the true reason for dismissal, to determine whether misconduct has occurred (A-385-11).

7.2.5 Interpretation of the meaning of misconduct

The word misconduct is not defined in the legislation. Over the years jurisprudence has made a number of clarifications to its interpretation. As a result, its meaning under the EI Act has evolved to be conduct which must be wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects their actions would have on their ability to fulfill the conditions of their employment. It requires an element of wilfulness, or conduct so reckless as to approach wilfulness (A-381-85, A-1342-92, A-296-03, A-72-02, A-558-12, A-51-10).

In other words, to be considered misconduct under the EI Act, the actions must be intentional or negligent to the point of being deemed a breach of an obligation arising explicitly or implicitly from the contract of employment; otherwise there is no misconduct.

Misconduct is not mere failure to perform an obligation associated with the employment. It is a failure of such magnitude that the individual responsible for the action could predict, as a normal outcome, their dismissal or suspension.

Employers do not necessarily share the same definition of misconduct as that found in jurisprudence, and it is sometimes difficult to ascertain the cause of dismissal.

Many times, employers express that they had no alternative but to dismiss the employee as progressive discipline failed to rectify the behaviour, or that the degree of incompetence or negligence was so great that immediate termination was warranted.

Sometimes an employee, despite their best efforts, is unable to do a job and is dismissed. This is not considered misconduct. A genuine lack of skill, aptitude or ability does not suggest a deliberate action that reflects wilful behaviour. Likewise, a personality conflict between an employee and a supervisor does not represent wilfulness (CUB 36177, CUB 75215). If the evidence concludes the employee was not suited to the job, this in itself does not imply wilfulness or misconduct.

Inappropriate behaviour in the workplace can be the result of incompetence, negligence or misconduct, any one of which an employer could consider grounds for dismissal. For these reasons, especially given the consequences of a finding of misconduct under the EI Act, thorough fact-finding and the application of these facts to the judicial interpretation of misconduct is a necessity.

An employer may well have cause for dismissing an individual, but dismissal does not automatically translate into misconduct under the EI Act. Care must be taken to ensure that a decision to deny benefits is not taken solely on an employer’s assurance that the conduct in question is misconduct, or exclusively on the employer’s subjective appreciation of the events (A-732-95).

The employer is not required to prove that the actions or omissions in question constitute misconduct under the Act nor is the Commission to rely on the employer's belief that the actions in question constituted misconduct.

7.2.5.1 Loss of employment due to voluntary leaving or misconduct

In practice it is not always easy for the officer to determine whether the loss of employment was due to a voluntary leaving or a dismissal. A person having to choose between resigning or being dismissed may decide to leave the job in order to preserve their work record. On the other hand, a person who does not advise the employer of a prolonged absence from work could be viewed as a person who wants to leave employment to the point of leading to a dismissal.

The sections of the legislation that address voluntary leaving and dismissal are inextricably linked. In either case, the claimant has acted in such a manner that avoidable loss of employment resulted.

It does not matter whether the case is one of loss of employment through misconduct or voluntary separation without just cause provided that a disqualification would be warranted in either case. Both grounds could be mentioned in the notice of disqualification sent to the claimant (A-1398-92, A-78-04, A-562-04).

This does not mean the officer may simply determine the loss of employment somehow resulted from the claimant’s own actions. The Commission must gather and evaluate the facts. The final decision must reflect the facts considered and whether a determination of dismissal due to misconduct, or voluntary separation without just cause, is more valid. The decision would involve who initiated the act of severing the employment and the reasons behind this action.

There may be situations for which an original reason for the separation from employment has been changed as a result of a grievance. This does not alter the facts of the case nor the events that gave rise to the cessation of employment (A-291-98, A-319-14).

There may be situations, such as in the case of a constructive dismissal, where the employer simply wanted to get rid of the employee. Constructive dismissal may involve, the employer unilaterally making substantial changes to the terms of employment, such as reduction in salary, demotion, removal of compensation or benefits or transfer to another location. Employees subjected to such changes may decide to quit the employment. Once all facts of the case are obtained, it may be found to be a case of constructive dismissal without misconduct, or that the voluntary leaving was with just cause.

7.2.5.2 Progressive discipline

Progressive discipline is a process by which an employer imposes increasingly severe sanctions for repeated behaviour. Progressive discipline often follows a written policy or provisions of a collective agreement that describe exactly what process must occur before an employee can be dismissed. Evidence that an employer tried to correct undesirable conduct and imposed increased sanctions for repeat occurrences can be evidence of a progressive discipline process.

Progressive discipline may be a lengthy process. For example, some employers may follow procedures which require that three verbal warnings be documented to the personnel file, followed by three written warnings, suspension and a warning that a further infraction may result in dismissal.

Progressive discipline policies may include provisions to assist an employee who suffers from an addiction that affects job performance.

The common elements in progressive discipline are:

• the employee is warned that a behaviour will not be tolerated and is given an opportunity to correct that behaviour
• the employer applies increasingly more serious consequences for repeated offences
• the employee is warned that their employment is at risk

There must be specific evidence to conclude progressive discipline. This includes some or all of the following:

• a copy of the company policy
• evidence that the employee received and understood the policy, such as a signed (written or electronic) confirmation of receipt of that policy
• dates and details of previous infraction(s) and the disciplinary actions imposed
• documentation showing the employee was given an opportunity to defend or discuss the alleged misconduct
• date and details of the final warning
• date and details of the final incident and dismissal

The progressive discipline sequence must be in regard to a single, specific behaviour. The evidence must show the employee understood another incident could, or would, result in suspension or dismissal. An employee who is dismissed for tardiness, but the last warning was two years ago and the current infraction is minor, may lack the element of wilfulness in the final incident.

The Commission must look at whether the final incident was wilful. For example, an employee who is late for work because a power failure re-set their alarm clock is tardy due to a circumstance over which there is no control. The element of wilfulness is missing in that final incident. The employer may be within their rights to end the employment, but the claimant is not necessarily refused EI benefits even though the employee may have a history of being late.

Some employers have policies that say breaking any three rules will result in suspension or dismissal. This means that an employee may, for example, be warned for being tardy and can never be late again. The same employee may be warned about a dress code violation and subsequently always attend the workplace appropriately attired. The employee may then be warned that any further infraction of the rules will result in dismissal. The employee may then be dismissed for failing to follow a minor procedure, although the infraction would not normally lead to dismissal. This is not progressive discipline. In the example above, the disciplinary action following each infraction successfully controlled the behaviour. The Commission must follow the normal process in determining whether the final incident was one of misconduct.

If there is no formal process, the evidence must show the nature of the warnings and what, if any, sanctions were applied to the employee. For example, if an employee is told they have to get to work on time, but is not warned of any consequences, it is impossible to conclude the employee understood that being late was considered so serious as to warrant the loss of employment. When the employer does not intervene, it appears the employer condones, or accepts the undesirable conduct.

Progressive discipline must be in relation to conduct that both lies within the employee’s control and affects the employment relationship (A-416-08).

7.2.5.3 Misconduct discovered after dismissal

An employer may dismiss an employee because of dissatisfaction with job performance, or other difficulties that do not constitute misconduct. Subsequent to the dismissal, the employer may discover the employee behaved in a manner that, had the employer been aware, would have led to immediate discharge and would have constituted misconduct. In this case, the Commission must examine the reason for the dismissal. If the employer did not discover the inappropriate behaviour until after the dismissal, the dismissal did not occur because of the misconduct. The employer may have had other legitimate, reasons for terminating the employment relationship, but the misconduct that was discovered after the termination is not the reason for which the claimant was dismissed and therefore cannot be used to disqualify the claimant.

7.2.5.4 Misconduct prior to date of hire

While it is not mandatory that the misconduct occurred during the employment, there must always be a causal link between the misconduct and the loss of employment. Misconduct can result from an act or omission that occurred prior to the start of an employment from which the employee is later dismissed in situations where the misconduct is the direct cause for the dismissal (A-239-06).

The Act speaks of a loss of "any employment" as a result of misconduct and does not limit a disqualification to the employment occupied at the time of the misconduct. The relationship between employment and misconduct is not one of timing but of causation (A-875-96, A-732-95, A-236-94, A-352-94, A-96-95, A-462-10, A-337-07).

A case illustrating this occurred in which a claimant was charged with a driving offence and was awaiting a court date. During this time, the claimant accepted a position as a driver where maintaining a valid driver’s permit was a condition of employment. When the case was decided in Provincial Court, the claimant’s driving privileges were suspended for one year. The claimant therefore had to resign their employment. In adjudicating their claim for benefits it was found that, the fact that the claimant could not retain their employment and had to resign following the loss of their licence, was a breach of duty which occurred during their employment and that this breach was a direct result of their misconduct.

7.2.5.5 Settlement reached since dismissed

There will be situations for which it has been decided the claimant was dismissed due to their own misconduct and later the employer and claimant may agree on a settlement agreement. They may settle for a certain financial sum or the initial reason for separation may be changed to resignation instead of dismissal and all references to termination removed from the former employee’s file. The question then becomes whether such agreements have an impact on the decision of misconduct originally made by the Commission and whether voluntary leaving should now be considered.

The answer lies in the terms used in the agreement. An agreement is not by itself sufficient to overturn a finding of misconduct based on all the evidence on file. In order to contradict a previous finding of misconduct, an agreement must contain some evidence which can legitimately contradict the employer’s original position with respect to the reason for separation (A-294-06). The agent will consider the new facts in addition to the information already on file, compare them against the initial decision and determine whether the agreement casts doubt on the claimant’s misconduct. If so, it then becomes a case of voluntary leaving (A-170-98).

An agreement that includes a “without prejudice” clause (which generally expresses that neither party will make statements on the issue) is not generally admissible in evidence as proof that the loss of employment was not due to misconduct and does not constitute new facts that could alter or affect the outcome of the original decision of misconduct (A-233-94, A-45-96).

If it is determined that, based on the additional facts from the agreement, the loss of employment is not due to misconduct, the question then becomes one of voluntary leaving and will be adjudicated based on guidance from Chapter 6 of this Digest.

7.2.5.6 Dismissal after resignation

EI provides regular benefits to individuals who lose their jobs through no fault of their own, are available for and able to work, but have not yet found a job.

7.2.5.6.1 Notice period not worked – No compensation for the notice period

If a claimant gives the employer notice that they are leaving employment on a specific date and the employer advises the claimant to leave prior to that date, but does not keep them on the payroll for the notice period, the reason for separation is adjudicated as voluntary leaving and not dismissal from employment, as it was the claimant who initiated the separation. Guidance can be found in Chapter 6 of this Digest. If a disqualification is to be imposed, the effective date will be the specified date of resignation, not the date the employer asked them to leave. The notice of resignation must have been formal (verbal or written), and not just a statement to the effect that they planned on leaving or were looking for other employment.

7.2.5.6.2 Notice period not worked – Compensation received for the notice period

Situations in which the employer advises the claimant to leave immediately but continues to pay them up to the effective date of resignation requested by the employee, are treated as cases of voluntary leaving ,not dismissal prior to voluntary leaving. Again, in this situation, it was the claimant who initiated the separation from employment, regardless of whether or not they continue to work or get paid. These cases would be adjudicated according to provisions in Chapter 6 of this Digest.

7.2.5.6.3 Notice period not worked – Partial compensation for the notice period

Situations in which an employer partially compensates the claimant for the notice period are cases of voluntary leaving as per provisions in Chapter 6 of this Digest. Any applicable disqualification is effective from the date specified in the letter of resignation.

7.2.5.6.4 Dismissal for misconduct prior to the end of the notice period

When an employer dismisses the claimant prior to the resignation date, for reasons of misconduct, the adjudication principles for misconduct are used. The act that caused the dismissal could have occurred prior to or after the claimant handed in their resignation. In either case, when fact finding is complete, the adjudication principles set out in this chapter of the Digest (dependent on the reason) would be applied. If misconduct is not proven, a subsequent disqualification for voluntary leaving cannot be imposed. This is because the reason the claimant is unemployed is no longer due to resignation, but rather dismissal.

[ August 2023 ]