KG v Canada Employment Insurance Commission

KG v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-03-11 Neutral citation 2020 SST 655 Reference number GE-20-421 Member Raelene Thomas Division General Division Decision Appeal dismissed Decision Content On this page Decision Overview Preliminary matter Issue Analysis Conclusion Decision [1] The appeal is dismissed. The Claimant lost his employment due to his own misconduct. This means the Claimant is disqualified from receiving employment insurance (EI) benefits. Overview [2] The Claimant worked at a call center. The Claimant was charged with several offences and signed a Recognizance for his release. The Recognizance required that he live with his surety, his mother, and that he not be within 25 meters of a named person who also worked for his former employer. His mother’s residence was three hours’ drive from his place of work. He called the employer to explain the situation and they issued a Record of Employment (ROE) stating that he quit. The Commission looked at the Claimant’s reasons for leaving his employment, determined that he voluntarily left his employment and disqualified him from receiving EI benefits. The Claimant disagrees with this decision. He says that he had no alternative but to leave his employment because he had no intentions of not returning to work and was court ordered to leave his job. Preliminary matter [3] The hearing was scheduled for 10:00 a.m. (Atlantic Time) on February 25, 2020. I established the teleconference hearing at 9:53 a.m. (Atlantic Time) on February 25, 2020. The Claimant joined the teleconference at 10:23 a.m. on February 25, 2020. At that time, the Claimant asked if he could call back in an hour as he wanted his mother to join him. In the interests of natural justice, I granted the Claimant’s request to allow him to be represented by his mother. The hearing was rescheduled to 12:30 p.m. (Atlantic Time) on February 25, 2020 and proceeded at that time. Issue [4] I have to decide whether the Claimant is disqualified from receiving EI benefits. To do this I must first determine how the Claimant’s employment ended. Was he dismissed or did he voluntarily leave his employment? [5] If the Claimant voluntarily left his employment, did he leave with just cause? [6] If the Claimant was dismissed, did he lose his employment due to his own misconduct? Analysis [7] The Employment Insurance Act deals with misconduct and voluntarily leaving without just cause together. The law states that the loss of employment must be involuntary to qualify for EI benefits.Footnote 1 This means a claimant is disqualified from receiving EI benefits if he lost his job due to misconduct or if he voluntarily left his job without just cause. Because of this, I can find that a claimant is disqualified from EI benefits due to misconduct or voluntary leaving as long as the evidence supports the finding.Footnote 2 The Claimant was dismissed from his employment [8] The courts have said that to determine if a claimant voluntarily left his employment the question to be answered is whether he had a choice to stay in or to leave his employment.Footnote 3 [9] I find that the evidence supports that the Claimant was dismissed. This is because he did not have a choice to remain in his employment. [10] It does not matter whether the employer or the employee took the initiative in severing the employment relationship where the employment is terminated by necessity and a reprehensible act is the real cause of that termination.Footnote 4 [11] The Claimant testified that he attempted suicide twice in the last week of his employment. The first attempt occurred on Monday, September 23, 2019. He went by ambulance to hospital where he was treated and released without being admitted to hospital. The Claimant submitted a doctor’s note indicating that he was able to return to work two days later on Wednesday, September 25, 2019. The Claimant testified that he had Thursday, September 26, 2019, off. He made his employer aware that he was off due to illness from Monday to Wednesday and that he would return to work on Friday, September 27, 2019. [12] The Claimant testified that on Thursday, September 26, 2019, he was having a drink on his day off to unwind, he just turned 19 and had no intention of going overboard or harming himself. He said that as the week and that day went on his mental health got the better of him. With the consumption of alcohol, his suicidal thoughts returned. He also took Xanax that was supplied to him by his then girlfriend. The Claimant testified that “the suicide was the pills.” The Claimant said that he lost control and everything went downhill from there. The Claimant said that it was his decision to consume the alcohol and the drugs. He was alone when he was drinking and that increased his suicidal ideation. He called a help line but that did not work out for him. He said he was arrested later that day (Thursday) or the next day (Friday). He testified he did not receive any medical attention for the second suicide attempt. [13] The Claimant testified that following his arrest he was jailed and charged with a number of offences. He says the offences occurred on Thursday, September 26, 2019. The Claimant was in jail from September 27 to September 30, 2019. The Claimant submitted a copy of a Recognizance issued on September 30, 2019. The Recognizance lists five offences that occurred from September 25, 2019, to September 28, 2019. The offences are aggravated assault, unlawful confinement, overcoming resistance to commission of offence attempts to choke, suffocate or strangle another person, mischief and breach of probation. The conditions of the surety that the Claimant signed required that he live with his surety, his mother, and that he not be on or within 25 meters of his now former girlfriend’s residence, any known residence or her place of employment. The Claimant and his now former girlfriend worked for the same employer. [14] The Claimant testified his employer texted him while he was in jail. The Claimant called his employer on Tuesday, October 1, 2019. The Claimant spoke to the human resources (HR) manager. The Claimant testified that he told the HR manager that he was incarcerated, was legally no longer allowed to be within their premises or have contact with one of their employees, and he was court ordered to move to [mother’s town]. He said the HR manager told him that if it works itself out to call them back. The Claimant testified that the HR manager told him that she would not put Quit on the ROE. He did not want quit on the ROE. The Claimant initially testified the HR manager told him she would put something different on the ROE, maybe a temporary layoff. After I asked the Claimant if he asked the HR manager for a leave of absence, he said the HR manager agreed to a leave of absence. [15] I do not accept that the HR manager agreed the Claimant could take a leave of absence. His initial testimony was that he told her he did not want a quit on the ROE. He said the HR manager said to call them if it all worked out. Those statements do not indicate to me there was an agreement for the Claimant to temporarily leave his place of work to return at a later date. The Claimant completed his application for EI benefits on October 8, 2019. He indicated that he quit his employment because he was “court appointed to move out of the [city] area where my employer was located.” The ROE issued on October 18, 2019, ten days after the Claimant applied for EI benefits, states Quit as the reason for issuing. Had the HR manager agreed that the Claimant was on a leave of absence the Claimant would not have indicated that he quit on his application for EI and the ROE would also not indicate that he Quit. Based on the foregoing evidence, I find that the employer determined the Claimant quit his job when he was unable to continue working at their premises due to the conditions of the Recognizance. [16] The Claimant submits that he did not have a choice to stay in or leave his employment because the court ordered that he reside with his surety, which was over three hours’ drive away, and he was not allowed to be within 25 meters or communicate with one of another employee at the same place of work. He would have done anything to stay. The Claimant submitted it was not the employer who said he could not work there. [17] The Commission noted in the appeal file that the Claimant’s employer did not return any of its telephone messages. The Commission stated given that the Claimant quit due to personal reasons, it did not send a letter to the employer as the employer is not considered an interested party. The Commission submitted that because the Claimant initiated the separation from employment it is considered a case of voluntary leaving. The Commission says it was the Claimant’s deliberate actions that led to the incident, jail, court orders and him having to leave his job. It argues that because it was the Claimant’s actions outside the workplace that compromised his employment, his reasons for leaving do not amount to just cause as per the Employment Insurance Act. [18] I find this case is not one of rejection by the employer, nor is it one of the employee leaving voluntarily. Neither the employer nor the employee had any choice. This is a case of an employee suddenly being unable to carry on his job due to the conditions of a Recognizance. The court has said if the employment is terminated by necessity, and if a reprehensible act is to be identified as the real cause of that sudden situation, it is misconduct exclusive of just cause.Footnote 5 [19] I find the Claimant did not have the choice to remain in his employment. Therefore, the Commission has not met its burden of proving the Claimant voluntarily left his employment. For the reasons set out below, I find that the Claimant was dismissed from his employment because of his own misconduct; namely, his inability to continue working for his employer due to the Recognizance issued in response to the alleged criminal offences. As such, I will decide this appeal in accordance with the legal tests for misconduct. No need to consider just cause [20] Having determined the Commission has failed to prove the Claimant voluntarily left his employment, I do not need to address the issue of just cause. The legal tests for misconduct [21] Misconduct is defined as “wilful misconduct” where a claimant knew or should reasonably have known that his conduct was such that it would result in his dismissal. [22] To determine whether the misconduct could result in dismissal, there must be a causal link between the claimant’s misconduct and the claimant’s employment.Footnote 6 [23] The conduct must cause the loss of employment, have been committed by the claimant while employed by the employer, and must constitute a breach of a duty that is express or implied in the employment contract.Footnote 7 [24] The Commission has burden to prove that misconduct occurred.Footnote 8 The burden of proof in this case is a balance of probabilities, which means is it “more likely than not” the events occurred as described. [25] For me to conclude that there was misconduct, there must be sufficiently detailed evidence to know whether the Claimant acted in the manner that he is accused of, and then whether this behaviour is considered misconduct.Footnote 9 What conduct led to the Claimant’s loss of employment? [26] I find the conduct that led to the Claimant’s loss of employment was his inability to work for his employer. [27] The evidence tells me the Claimant was subject to a Recognizance. The Recognizance required the Claimant to live with his surety, his mother, who lived 3 hours’ drive from his place of work. It also required that the Claimant not be within 25 meters of his former girlfriend’s residence or place of employment, and not to communicate with her. The Claimant’s former girlfriend works for the Claimant’s former employer. She works at the same workplace as the Claimant and is part of the Claimant’s work group that receives regular communications from the employer and other employees. The Recognizance effectively removed the Claimant’s ability to work for his employer. Based on the foregoing evidence, I find the conduct that led to the Claimant’s loss of employment was his inability to work for his employer. Did the Claimant commit the conduct that led to the loss of his employment? [28] Yes. The Claimant contacted his employer on Tuesday, October 1, 2019. He told them that he could not work at their premises due to the court ordering him to live with his surety and the legal requirement that he not be within 25 meters of his former girlfriend or communicate with her. The Claimant said the HR manager agreed to him taking a leave of absence. As stated above, I have found this not to be the case. The employer issued the ROE with the reason for issuing as Quit. The Claimant was no longer able to work for his employer. As a result, I find that the Claimant committed the conduct that led to loss of his employment. Is the conduct misconduct within the meaning of the Employment Insurance Act? [29] Misconduct requires a mental element of wilfulness on the part of the claimant, or conduct so negligent or reckless as to approach wilfulness.Footnote 10 Wilfulness has been defined in a number of ways, but generally requires the claimant to have acted consciously, deliberately, or intentionally. [30] Misconduct has been defined as “wilful misconduct.” Misconduct exists where the claimant knew or ought to have known that his conduct “was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.”Footnote 11 The misconduct must therefore constitute a breach of an express or implied duty resulting from the contract of employment. [31] The Claimant’s Representative, affirmed to give evidence, submitted that the Claimant has mental health issues that led to two suicide attempts in his last week of employment. She said that the Claimant was diagnosed when he was 11 years old with depression and anxiety. The Representative argued that the Claimant had no intentions of not going back to work. He consumed alcohol and as he took the drugs the suicidal thoughts took over and then “it” transpired, referring to the actions that caused the Claimant’s criminal charges. The charges laid against the Claimant are pending. There was no other surety with whom the Claimant could live with that would have allowed him to remain near his workplace. The Claimant requested a transfer from the employer but there was nowhere else for the Claimant to work. The Representative submitted that the Claimant had exhausted all reasonable alternatives. [32] I find that it is an express and implied duty of the Claimant’s employment that he be able to carry out his duties for his employer. His Representative testified that she and the Claimant went on line to see if the Claimant’s employer had a branch nearby her home where he could work. There was no branch. The Claimant asked the HR manager if he could work elsewhere but there was nowhere else for him to work. I find that the Claimant was aware that being able to carry out his duties for his employer was a requirement of his employment as evidenced by his request for a transfer to another branch or for some other means to continue his employment. As a result, I find that the Claimant knew that by not being able to work for his employer he would be breaching an express duty of his employment such that dismissal was a real possibility. Accordingly, I find the conduct of the Claimant to be misconduct within the meaning of the Employment Insurance Act. [33] Misconduct is not defined in the Act, and whether it has occurred is largely “a question of circumstance.”Footnote 12 As noted above, the case law provides that for misconduct to be found there must be a mental element of willfulness on the part of the Claimant or the conduct must be so negligent or reckless as to approach willfulness.Footnote 13 Wilfulness has been defined in a number of ways, but generally requires the claimant to have acted consciously, deliberately, or intentionally. [34] In this case, it is clear that the Claimant’s inability to work itself was not conscious, intentional, or willful, as the Claimant was unable to attend his work because he was prohibited from attending work because of the Recognizance. However, I also must consider whether the actions that resulted in the Claimant’s inability to attend work were conscious, deliberate, intentional or so reckless as to approach willfulness. [35] It has been well established that a claimant who has suffered a termination of employment as a result of incarceration, or other court order rendering him unable to report for work, is not entitled to EI benefits whether the end of employment results from voluntary separation without just cause or from dismissal for misconduct.Footnote 14 [36] Therefore, while it does not establish beyond a reasonable doubt that a criminal offence has been committed, the recognizance is not without probative value. The very fact that a recognizance order has been issued presupposes that, on a balance of probabilities, the defendant has engaged in conduct causing the informant to fear for her safety.Footnote 15 [37] The Representative submitted that the Claimant’s intention when he began drinking was not to commit suicide but to relax. The Representative argues that the Claimant’s consumption of alcohol and drugs led to the charges and to the Claimant being incarcerated. The Claimant testified that it was his choice to consume alcohol and take the Xanax. He did not have a prescription for Xanax, he got the Xanax from his then girlfriend. He said he did not know how the alcohol and Xanax taken together would affect him. [38] The Claimant testified that he did not intend to harm himself when he began drinking. He said the “suicide was the pills.” He testified that he “lost control and everything went downhill from there.” He was charged with several offences on Thursday or Friday. I accept the Claimant’s statements that it was his choice to consume both the alcohol and Xanax together. He testified that he did so without knowing what effect that action would have on him. As a result, I find that the Claimant’s actions to consume the alcohol and Xanax were so reckless as to approach wilfulness. [39] It is the Claimant’s testimony and his Representative’s submission that the consumption of alcohol and Xanax that led to the charges being laid against him. The charges allege the Claimant unlawfully confined, assaulted and tried to overcome resistance by choking his then girlfriend. His then girlfriend was also his co-worker. Those charges led to the Recognizance requiring that he live with his surety and not be within 25 meters of a fellow employee. The evidence tells me that the Claimant’s wilful actions led to him being unable to work for his employer. Accordingly, I find that the Claimant lost his job due to his own misconduct. [40] The case law is ample that where a claimant is unable to report for work due to incarceration misconduct will be found to have occurred.Footnote 16 Conclusion [41] The appeal is dismissed. The Claimant lost his employment because of his own misconduct. The Commission was justified in imposing on the Claimant a disqualification from receiving EI benefits pursuant to section 30 of the Employment Insurance Act. Heard on: February 25, 2020 Method of proceeding: Teleconference Appearances: K. G., Appellant I. G., Representative for the Appellant Footnotes Footnote 1 Hills v Canada (Attorney General), 1988, 1 S.C.R. 513. This is how I refer to the court cases containing principles that I must apply to the Claimant’s circumstances to decide this appeal. Footnote 2 Canada (AG) v Easson, A-1598-92; Canada (AG) v Desson, 2004 FCA 303 Footnote 3 Canada (Attorney General) v Peace, 2004, FCA 56. Footnote 4 Canada (Attorney General) v Desson, 20014 FCA 303 Footnote 5 Canada (Attorney General) v Borden, 2004 FCA 176. Footnote 6 Canada (Attorney General) v Lemire, 2010 FCA 314 Footnote 7 Canada (Attorney General) v Cartier, 2001 FCA 274 Footnote 8 Lepretre v Canada (Attorney General), 2011 FCA 30 Footnote 9 Joseph v Canada (Attorney General), A-636-85 Footnote 10 Canada (Attorney General) v Tucker, A-381-85 Footnote 11 Canada (Attorney General) v Mishibinijima,2007 FCA 85 Footnote 12 Attorney General of Canada v Gauthier, A-6-98 Footnote 13 Canada (Attorney General) v Tucker, A-381-85 Footnote 14 Canada (A.G.) v Brissette, [1994] 1 F.C. 684 Footnote 15 Canada (Attorney General) v Djalabi, 2013 FCA 213 Footnote 16 Canada (Attorney General) v Borden, 2004 FCA 176.