BE v Canada Employment Insurance Commission

BE v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2025-04-30 Neutral citation 2025 SST 844 Reference number GE-25-902 Member Barbara Hicks Division General Division Decision Appeal dismissed Related decisions SST - BE v Canada Employment Insurance Commission - 2025 SST 843 - 2025-08-11 - Appeal Division Decision Content Citation: BE v Canada Employment Insurance Commission, 2025 SST 844 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: B. E. Representative: G. W. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (686596) dated February 21, 2025 (issued by Service Canada) Tribunal member: Barbara Hicks Type of hearing: Videoconference Hearing date: April 11, 2025 Hearing participants: Appellant Appellant’s representative Decision date: April 30, 2025 File number: GE-25-902 On this page Decision Overview Issue Analysis Conclusion Decision [1] The appeal is dismissed. The Tribunal disagrees with the Appellant. [2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant lost his job because of misconduct (in other words, because he did something that caused him to lose his job). This means that the Appellant is disqualified from receiving Employment Insurance (EI) benefits.Footnote 1 Overview [3] The Appellant lost his job as a bus driver on May 21, 2024, after he failed to attend a meeting with the employer to discuss his conduct at work. The Appellant’s employer says the Appellant breached the Highway Traffic Act by speeding and that he breached the school consortia rules. Complaints had been received about the Appellant’s driving. When the Appellant failed to attend a meeting with the employer to discuss these issues, the employer fired him, instead of suspending him as they were planning to do.Footnote 2 [4] The Appellant admits he didn’t attend the meeting.Footnote 3 He testified that it wasn’t convenient for him, that the meeting wasn’t set for a time when he would be going to work, and that he was busy at home. He also said that he didn’t want to be humiliated in person and the meeting could have happened by phone. [5] The Appellant denies that he drove erratically and says that he wasn’t speeding when he had students on the bus. The Appellant admits there was an interaction with a truck driver but says the truck driver was the aggressor. The Appellant denies that he had been given warnings about his driving before. The Appellant says the employer didn’t follow the proper discipline process prior to his dismissal and that the Commission just accepted the employer’s statements without giving the Appellant a chance to address the information that the Commission had on file.Footnote 4 The Appellant testified that he believes he was wrongfully dismissed. [6] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant lost his job because of misconduct. Because of this, the Commission decided that the Appellant is disqualified from receiving EI benefits. Issue [7] Did the Appellant lose his job because of misconduct? Analysis [8] To answer the question of whether the Appellant lost his job because of misconduct, I must decide two things. First, I must determine why the Appellant lost his job. Then, I must determine whether the law considers that reason to be misconduct. Why did the Appellant lose his job? [9] I find that the Appellant lost his job because he failed to attend a meeting arranged by the employer for the purposes of discussing the allegations about his conduct at work. [10] The Commission says the employer satisfied them that the Appellant was terminated for breaching the Highway Traffic Act and breaching the school consortia rules. The Commission says the Appellant was aware of the Bus Driver Policy that he agreed to adhere to when he was hired. He had been verbally warned and put on progressive discipline. He was told that his speeds were excessive and that his employer would be conducting further audits. The Commission says the Appellant ought to have known that he risked dismissal. He chose to continue driving in a manner that breached the rules and expectations.Footnote 5 [11] The Appellant denies the allegations that were made against him. He says he never got a chance to examine the employer’s evidence or defend himself against the allegations. [12] The employer invited the Appellant to a meeting to take place on the morning of May 21, 2024 to discuss the allegations. [13] The Appellant didn’t plan to attend the meeting. He testified that he knew “something was afoot” so on his last day of work before the meeting, being Friday, May 17, 2024, he drove the bus back to the garage and left it there for the weekend. [14] When the Appellant didn’t show up for the meeting, the employer called him. The employer stated that they intended to suspend the Appellant for three days at the meeting, but since he didn’t attend the meeting, he was being dismissed instead.Footnote 6 [15] The employer’s termination letter states that the Appellant was being terminated because he failed to attend the meeting. In addition, the employer says the Appellant failed to follow the Responsibilities of the Bus Driver Policy, which he had signed at the time of hire, and breached the Highway Traffic Act and the school consortia’s rules and procedures.Footnote 7 [16] If the Appellant had attended the meeting, he’d have had the chance to respond to the allegations against him and perhaps keep his job and suffer a suspension instead of termination. [17] The timing of the dismissal coincides with the date of the meeting that the Appellant failed to attend. [18] I find the Appellant was terminated because he failed to attend a meeting with the employer. Is the reason for the Appellant’s dismissal misconduct under the law? [19] The reason for the Appellant’s dismissal is misconduct under the law. [20] To be misconduct under the law, the conduct must be wilful. This means that the conduct was conscious, deliberate, or intentional.Footnote 8 Misconduct also includes conduct that is so reckless that it is almost wilful.Footnote 9 The Appellant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.Footnote 10 [21] There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that.Footnote 11 [22] The Commission must prove that the Appellant lost his job because of misconduct. The Commission must prove this on a balance of probabilities. This means that it must show that it’s more likely than not that the Appellant lost his job because of misconduct.Footnote 12 [23] The Commission decided there was misconduct because the Appellant had breached the employer’s policies, violated the Highway Traffic Act, and failed to follow the school consortia’s rules set out in the Responsibility of a Bus Driver policy that the Appellant agreed to adhere to when he was hired. This was misconduct because the Appellant had previously been given verbal warnings that his speeds were excessive, that his employer would be doing further audits of his driving and the Appellant was aware his actions were unacceptable.Footnote 13 [24] The Commission says that considering the Appellant had received multiple warnings about his driving, particularly his speeding, was warned that further audits would be conducted and that if his speeds were found to exceed the maximum posted by 50 km/hour it would be cause for immediate dismissal. He ought to have known that he risked dismissal and knowingly failed to change his behaviour and chose to continue driving in a way the employer didn’t like.Footnote 14 [25] The Appellant says that there was no misconduct because the employer didn’t prove the allegations against him. He denies doing anything wrong, saying the employer considers speeding to be part of the job and even 30 km/h over the limit is a “minor infraction.” He says he didn’t get a chance to see the evidence the employer had about his speed until he brought his appeal to the Tribunal. He denies being warned by the employer and denies being put on progressive discipline. The Appellant says that a supervisor, Anne Chabot, was hostile toward him and wanted to get rid of him. The Appellant says the employer retroactively tried to build a case against him.Footnote 15 [26] I don’t need to concern myself with the substance of the allegations against the Appellant. I find that there was misconduct because the Appellant failed to comply with a reasonable request to attend a meeting to discuss the complaints that had been made. In doing so, the Appellant was insubordinate and broke the trust relationship with his employer. [27] The allegations against the Appellant were serious and warranted an investigation by the employer. The employer appears to have taken the complaints seriously and took a further look into the information that they had available to them, including GPS speed data and video footage. [28] The employer didn’t dismiss the Appellant because they were convinced he had done all the things that were alleged. They dismissed him because he failed to attend a meeting. [29] I find that the Appellant made a conscious choice not to attend the meeting. He planned, in advance, not to attend the meeting. He returned the bus to the garage on Friday, which wasn’t his usual practice. He chose not to show up for the meeting on Tuesday morning. He chose not to go because he says it wasn’t convenient, and he didn’t want to be humiliated in person. He says that the meeting could have been held by phone instead. [30] There is no evidence that the Appellant requested the meeting be rescheduled, take place by phone instead, or that he shared his concerns with his employer about potentially being humiliated at the meeting. [31] The meeting was important to the employer. They were trying to investigate the complaints against the Appellant, which were serious. By the Appellant’s own actions, the Appellant knew the meeting was serious. He anticipated that he could be suspended, or he wouldn’t have returned the bus to the garage on Friday afternoon. [32] The Appellant knew, or ought to have known, that the failure to attend the meeting could lead to his dismissal. [33] I am of the view that the Appellant could have avoided jeopardizing his employment by attending the meeting when he was asked to do so. The Appellant could have addressed the complaints that were made against him, which he says he never had a chance to address. In addition, he may have only suffered a suspension instead of termination. [34] I understand that the Appellant doesn’t think that the employer was justified in terminating him. However, it’s not the role of the Tribunal to determine whether termination was justified or appropriate in the circumstances.Footnote 16 [35] The Federal Court says the focus is on the employee’s conduct and whether it amounted to misconduct under the Act.Footnote 17 More recent decisions have confirmed that the Tribunal is not the appropriate place to deal with allegations of wrongful dismissal, the employer’s conduct or the reasonableness of workplace policies.Footnote 18 [36] I find that the Appellant’s conduct in failing to attend a meeting with the employer was misconduct. So, did the Appellant lose his job because of misconduct? [37] Based on my findings above, I find that the Appellant lost his job because of misconduct. Conclusion [38] The Commission has proven that the Appellant lost his job because of misconduct. Because of this, the Appellant is disqualified from receiving EI benefits. [39] This means that the appeal is dismissed. Footnotes Footnote 1 Section 30 of the Employment Insurance Act says that Appellants who lose their job because of misconduct are disqualified from receiving benefits. Footnote 2 See GD2-9 and GD2-13. Footnote 3 See GD3-62. Footnote 4 See GD6-9. Footnote 5 See GD3-10. Footnote 6 See GD2-13. Footnote 7 See GD2-9. Footnote 8 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 9 See McKay-Eden v Her Majesty the Queen, A-402-96. Footnote 10 See Attorney General of Canada v Secours, A-352-94. Footnote 11 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 12 See Minister of Employment and Immigration v Bartone, A-369-88. Footnote 13 See GD3-36. Footnote 14 See GD4-10. Footnote 15 See GD6. Footnote 16 See Canada (Attorney General) v Caul, 2006 FCA 251 at paragraph 6. Footnote 17 See Canada (Attorney General) v Marion, FCA 185 at paragraph 3. Footnote 18 See Sullivan v Canada (Attorney General), 2024 FCA 7 at paragraph 4 and Kuk v (Attorney General), 2023 FC 1134 at paragraph 37.