CM v Canada Employment Insurance Commission

CM v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-06-20 Neutral citation 2024 SST 1612 Reference number GE-24-1483 Member Elyse Rosen Division General Division Decision Appeal dismissed Related decisions SST - CM v Canada Employment Insurance Commission - 2025 SST 1 - 2025-01-02 - Appeal Division SST - CM v Canada Employment Insurance Commission - 2025 SST 143 - 2025-02-12 - General Division Subjects EI - Denied for misconduct - Reason for dismissal Late request for reconsideration Decision Content Citation: CM v Canada Employment Insurance Commission, 2024 SST 1612 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: C. M. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (649305) dated March 14, 2024 (issued by Service Canada) Tribunal member: Elyse Rosen Type of hearing: Teleconference Hearing date: June 19, 2024 Hearing participant: Appellant Decision date: June 20, 2024 File number: GE-24-1483 On this page Decision Overview Issue Analysis Conclusion Decision [1] The appeal is dismissed. [2] The Canada Employment Insurance Commission (Commission) has proven that the Appellant was terminated because of his own misconduct (as that term is explained, below). This means that the Appellant is disqualified from receiving Employment Insurance (EI) benefits.Footnote 1 Overview [3] The Appellant was terminated from his job after coming in late for work. He told his employer that he would be late for work because he was celebrating his wife’s birthday. He applied for EI benefits. [4] The Commission says it can’t pay the Appellant benefits because he was terminated as a result of his own misconduct. The Appellant disagrees. [5] The Appellant’s employer told the Commission that the Appellant was terminated because he breached its policy regarding attendance and tardiness. It says he was often late and had been warned that if he came in late again, he would be terminated. [6] The Appellant doesn’t deny that he was coming to work late. But he claims he was having trouble getting into work because he couldn’t afford gas. He says he only received one formal write-up about his lateness. He claims that on the day he called in to advise that he would be late because he was celebrating his wife’s birthday, his foreman told him it was ok to be late. Issue [7] Was the Appellant terminated due to his own misconduct? [8] If he was, then he’s disqualified from receiving benefits. Analysis [9] The parties agree that the Appellant was terminated because he arrived at work late on November 14, 2023, because he was celebrating his wife’s birthday. [10] I have to determine whether the law considers that reason to be misconduct.Footnote 2 Is the reason for the Appellant’s termination misconduct under the law? [11] I find that the Appellant was terminated due to his own misconduct. [12] The term misconduct, as it is used in the Employment Insurance Act, does not have the same meaning as it does in common language. There doesn’t have to be wrongful intent (in other words, you don’t have to mean to be doing something wrong) for your behaviour to be misconduct under the law.Footnote 3 [13] Misconduct is conduct that a claimant knew or should have known could get in the way of carrying out their duties toward their employer and could result in their termination.Footnote 4 The conduct has to be wilful (in other words, conscious, deliberate, or intentional).Footnote 5 Or, it has to be so reckless that it is almost wilful.Footnote 6 [14] The Appellant’s employer told the Commission that: it has a formal policy regarding attendance and tardinessFootnote 7 the Appellant was aware of the policy and acknowledged reading and understanding itFootnote 8 the Appellant was late for work many times and was told his attendance had to improveFootnote 9 in addition to verbal warnings, the Appellant received formal written warnings about violating the company’s policy regarding attendance and tardinessFootnote 10 on November 14, 2023, the Appellant came to work late because he was celebrating his wife’s birthday the Appellant called to inform his foreman he would be late only 15 minutes prior to his shift the Appellant wasn’t given permission to arrive late [15] The Appellant admits that he was often late for work. He says it was because he couldn’t afford gas, or the taxi service provided by his employer. He claims he asked his employer for financial help so that he could afford gas, but his employer refused. [16] The Appellant says he only received one formal write-up, on November 7, 2023, about being late for work. He claims his signature on the write-up is forged. However, he admits that he was warned that if he was late again he could be terminated. [17] The Appellant confirms that he called in on November 14, 2023, 15 minutes prior to his shift. He claims that his foreman told him it was ok to come in late. [18] He says his employer had no right to fire him. He says he’s filed two grievances against his employer, but he believes they were denied. [19] The Appellant confirmed at the hearing that he was aware of his employer’s policy regarding attendance and tardiness. [20] He also admits that he was having difficulty getting into work on time. He insists he only received one formal write-up about his lateness. That was on November 7, 2023. He admits he was told at that time that if he was late again it might lead to his termination. [21] So, I find that as of November 7, 2023, the Appellant knew or should have known that if he was late again, he might be terminated. [22] Despite knowing this, on November 14, 2023, he called in 15 minutes prior to his shift to tell his foreman he would be late because he was celebrating his wife’s birthday. [23] The Appellant insists that his foreman gave him permission to be late. The employer told the Commission that this isn’t true. [24] I prefer the employer’s version of the facts to that of the Appellant. It is consistent with the balance of the evidence. I find that the Appellant wasn’t given permission to be late. I find that he was in breach of his employer’s policy on attendance and tardiness and knew, or should have known, that he could be terminated as a result. [25] But even if the Appellant understood that he had been given permission to be late, I would have come to the same conclusion. [26] By calling in 15 minutes prior to his shift, the Appellant nonetheless did something that he knew or should have known was contrary to his employer’s policy and could result in his termination. [27] The employer’s policy says that an employee who can anticipate that they will be late or absent must report their absence 5 days in advance. In the event the reason for their lateness or absence wasn’t anticipated, they must advise the employer at least 30 minutes prior to their shift that they will be late or absent. Late notice, or failure to provide advance notice if the absence could be anticipated, is subject to progressive discipline or termination.Footnote 11 [28] The Appellant testified that he knew at least a day prior to informing his employer that he would be late. He said that his family decided on November 13, 2023, to celebrate his wife’s birthday on November 14, 2023. According to the policy, he should have called as soon as he knew this and should have asked for permission to be late. [29] In all events, he was required to call in at least 30 minutes prior to the shift. So, he knew, or should have known, he was breaching the policy by calling in only 15 minutes prior to his shift. [30] Moreover, the Appellant testified that it takes him 30 minutes to get to work. That means that by calling only 15 minutes prior to his shift, he was taking the risk that if his request to come in late was denied, he’d be late for work. I consider this to be reckless in light of the warnings he’d received regarding his lateness. [31] So, even if I were to have found that the Appellant was given permission to be late, I would have found that he knowingly breached his employer’s policy by calling only 15 minutes prior to his shift and that he knew or should have known he could be terminated for that. That is misconduct under the law. [32] This means the Appellant was terminated due to his own misconduct, even if he understood that his employer had given him permission to be late on November 14, 2023.Footnote 12 The Appellant claims his employer shouldn’t have terminated him [33] The Appellant argues that his employer wrongfully terminated him, because he had only received one formal write-up about his lateness. He also says it should have helped him to get to work by providing him with money for gas. [34] Case law makes it clear that I’m not to consider the employer’s conduct when deciding if a claimant was terminated due to their own misconduct, except in circumstances where a claimant must choose between disobedience and unavoidable loss or harm.Footnote 13 [35] So, even if the Appellant’s employer wrongly terminated him or failed to provide him with support getting to work, it’s not for me to decide those issues. Those are issues for another forum. I note that the Appellant says he filed grievances regarding the wrongful termination. That is an appropriate way to assert those claims. Raising them here is not. Conclusion [36] The appeal is dismissed. [37] I find that the Commission has proven that the Appellant was terminated due to his own misconduct. Because of this, he’s disqualified from receiving EI benefits. Footnotes Footnote 1 Section 30 of the Employment Insurance Act (EI Act) says that claimants who lose their job because of misconduct are disqualified from receiving benefits. Footnote 2 The Commission has the burden of proving that the Appellant lost his job because of misconduct. It has to do so on a balance of probabilities. This means that it has to show that it is more likely than not that the Appellant lost his job because of misconduct. See Minister of Employment and Immigration v Bartone, A-369-88. Footnote 3 See Attorney General of Canada v Secours, A-352-94. Footnote 4 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 5 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 6 See McKay-Eden v Her Majesty the Queen, A-402-96. Footnote 7 The policy is set out at GD3-85. Footnote 8 The Appellant’s signed acknowledgement appears at GD3-111. Footnote 9 The dates the employer claims the Appellant was late for work are set out in his termination letter (GD3-26). Footnote 10 See GD3-29 and GD3-30. Footnote 11 See GD3-85. Footnote 12 I reiterate that based on the evidence I don’t accept this to be the case. Footnote 13 See Canada (Attorney General) v McNamara 2007 FCA 107; Paradis v Canada (Attorney General), 2016 FC 1282; Dubeau v Canada (Attorney General), 2019 FC 725; Canada (Attorney General) v Caul, 2006 FCA 251. There is no evidence of unavoidable loss or harm in this case.