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Difference between revisions of "Employment Insurance Benefit Entitlement (8:VII)"
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Employment Insurance Benefit Entitlement (8:VII) (view source)
Revision as of 01:54, 17 August 2018
, 01:54, 17 August 2018→C. Disqualification
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The disqualification will be deferred if the claimant is otherwise entitled to special benefits. In other words, a disqualification under section 27(1) of the EI Act will disqualify a claimant from receiving regular benefits, but the claimant may still collect any special benefits to which they are entitled. | The disqualification will be deferred if the claimant is otherwise entitled to special benefits. In other words, a disqualification under section 27(1) of the EI Act will disqualify a claimant from receiving regular benefits, but the claimant may still collect any special benefits to which they are entitled. | ||
'''NOTE:''' In these cases the length of disqualification is appealable. | :'''NOTE:''' In these cases the length of disqualification is appealable. | ||
Section 30(1) of the EI Act states that a claimant is disqualified when he or she is fired due to his or her own misconduct or when he or she quits without just cause. However, s 35 states that s 30(1) does not disqualify a claimant from receiving benefits if remaining in or accepting employment would interfere with the claimant's membership in a union or the claimant's ability to observe a union's rules. | Section 30(1) of the EI Act states that a claimant is disqualified when he or she is fired due to his or her own misconduct or when he or she quits without just cause. However, s 35 states that s 30(1) does not disqualify a claimant from receiving benefits if remaining in or accepting employment would interfere with the claimant's membership in a union or the claimant's ability to observe a union's rules. | ||
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A disqualification under section 30(1) of the EI Act is suspended for any week the claimant qualifies for special benefits. In other words, the claimant will disqualified from receiving regular benefits if they leave their employment without just cause or lose their job due to their own misconduct, but the disqualification will not prevent the claimant from collecting special benefits to which they are entitled. | A disqualification under section 30(1) of the EI Act is suspended for any week the claimant qualifies for special benefits. In other words, the claimant will disqualified from receiving regular benefits if they leave their employment without just cause or lose their job due to their own misconduct, but the disqualification will not prevent the claimant from collecting special benefits to which they are entitled. | ||
=== 1. Just Cause for Voluntarily Leaving Employment === | === 1. Just Cause for Voluntarily Leaving Employment === | ||
“Just cause” is defined under s 29(c) as follows: “having regard to all the circumstances, the individual had no reasonable alternative to leaving the | “Just cause” is defined under s 29(c) as follows: “having regard to all the circumstances, the individual had no reasonable alternative to leaving the employment”. Where an employee had “just cause” for leaving his or her employment, he or she will not be disqualified. The onus is on the worker to show “just cause”. The Commission must show that leaving was voluntary and that the claimant took the initiative in severing the employer-employee relationship; the worker must then prove just cause. | ||
The Decisions of the Umpires and the SST provide examples of what is and is not considered voluntary. Once the facts have been established to show voluntary leaving, the onus then shifts to the claimant to show that he or she had just cause. When the evidence of the employee and the employer contradict one another, and the evidence is evenly balanced, s 49(2) of the EI Act provides that the claimant shall receive the benefit of the doubt. | |||
==== a) Statute & Case Law ==== | ==== a) Statute & Case Law ==== | ||
Whether the | Whether the employee had “just cause” for leaving his or her employment is decided with statutes and case law. | ||
Sections 29(c)(i) – (xiv) of the | Sections 29(c)(i) – (xiv) of the EI Act provide a list of the circumstances that can constitute “just cause”. '''This list is neither exhaustive nor conclusive.''' In other words, circumstances not described in s 29(c) can also be just cause if they satisfy the main definition in s 29(c). On the other hand, circumstances listed in s 29(c)(i) – (xiv) will not be considered “just cause” if the conditions in s 29(c) are not met (if, for example, the claimant had a reasonable alternative). | ||
Under s 29(c), just cause includes: | Under s 29(c), just cause includes: | ||
*i) sexual or other harassment; | *i) sexual or other harassment; | ||
*ii) obligations to accompany a spouse, common law partner, or dependent child to another residence; | *ii) obligations to accompany a spouse, common law partner, or dependent child to another residence; | ||
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According to cases decided before Bill C-21 (1990) was introduced, and under the old ''Unemployment Insurance Act'', for a claimant to prove just cause, he or she must show: | According to cases decided before Bill C-21 (1990) was introduced, and under the old ''Unemployment Insurance Act'', for a claimant to prove just cause, he or she must show: | ||
*a) a genuine grievance, or other acceptable reason for leaving the employment; | *a) a genuine grievance, or other acceptable reason for leaving the employment; | ||
*b) proof of taking all reasonable steps to alleviate the grievance; and | *b) proof of taking all reasonable steps to alleviate the grievance; and | ||
*c) proof of a search for alternate employment before the termination, unless circumstances are so immediate that a proper search is impossible. | *c) proof of a search for alternate employment before the termination, unless circumstances are so immediate that a proper search is impossible. | ||
In ''Canada v Hernandez'', 2007 FCA 320 | In ''Canada v Hernandez'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse advised him that the silica dust which was a main material in the factory was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else. While this case is an aberration, it shows the importance of being able to prove that the worker did everything possible to avoid quitting. | ||
There are thousands of decisions by the Umpires, SST and Federal Court of Appeal addressing “just cause” issues that may help determine whether just cause existed. CUB 21681 (23 Sept. 1992) confirms that just cause may result from all of the circumstances together, although no single factor would be sufficient: “When the statute says ‘having regard to all the circumstances’, it imposes a consideration of the totality of the evidence.” Thus, if the claimant’s reason for leaving is not one of the enumerated factors under s 29 but the claimant feels that they had no reasonable alternative to quitting or that they were fired without committing intentional misconduct, a case could still be made that the totality of the claimant’s circumstances gives rise to just cause. | |||
==== b) Importance of Evidence ==== | ==== b) Importance of Evidence ==== | ||
Detailed evidence like records or diaries is exceptionally important in the determination of a claim. An employee should try to remember as many specific incidents, dates and times as he or she can. Though the older | Detailed evidence like records or diaries is exceptionally important in the determination of a claim. An employee should try to remember as many specific incidents, dates and times as he or she can. Though the older Umpire decisions or SST decisions may provide an indication of what “just cause” means, they are not determinative. | ||
==== c) Returning to School ==== | ==== c) Returning to School ==== | ||
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==== a) Determining Misconduct ==== | ==== a) Determining Misconduct ==== | ||
“Misconduct” is not defined in the ''EI Act'', but previous decisions have stated that the word must be given its dictionary meaning. According to ''Black’s Law Dictionary'': | “Misconduct” is not defined in the ''EI Act'', but previous decisions have stated that the word must be given its dictionary meaning. According to ''Black’s Law Dictionary'': | ||
:Misconduct occurs when conduct of employee evinces wilful or wanton disregard of [the] employer’s interest, as in deliberate violations or disregard of standards of behaviour which employer has right to expect of his or her employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. | |||
The Federal Court of Appeal in ''Mishibinijmia v Canada (Attorney General)'', 2007 FCA 36, provided a definition stating: “there will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct 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.” | |||
The alleged misconduct must be the real or the actual and direct cause for the dismissal, not merely an excuse for it. An employer cannot invoke previously forgotten or forgiven incidents to justify a dismissal. | |||
The | The onus of establishing a misconduct allegation rests on the party alleging it. The Commission or employer must prove positively the existence of misconduct and must prove the misconduct caused the loss of employment. Again, refer to the Umpire decisions for examples of what constitutes misconduct justifying lawful dismissal. | ||
==== b) Dishonesty ==== | ==== b) Dishonesty ==== | ||
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==== c) Theft ==== | ==== c) Theft ==== | ||
In the case of ''Attorney General of Canada v Linda Caul'', 2006 | In the case of ''Attorney General of Canada v Linda Caul'', 2006 FCA 251, the court decided that the claimant stealing from her employer, particularly given that the employee was in a position of trust, amounted to misconduct eventhough the employee acted foolishly or in desperation and the employer’s response was ‘overkill’. | ||
==== d) Addiction ==== | ==== d) Addiction ==== | ||
In ''Mishibinijima v Attorney General of Canada'', 2007 | In ''Mishibinijima v Attorney General of Canada'', 2007 FCA 36, the court examined whether an addiction has the element of willfulness necessary for a finding of misconduct. The court found that the applicant’s evidence was too weak to support the claim that he was not acting willfully. The court left open the possibility that with stronger evidence of compulsion due to addiction a claimant might succeed in rebutting misconduct. | ||
See also ''Attorney General of Canada v Brent Pearson'', 2006 FCA 199, where despite his addiction the claimant was disqualified for misconduct. In that case, the employee knew that his absences were unacceptable and notwithstanding his employer’s offers to help with the addiction the employee refused to take any such measures. | |||
In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana. As a result of test, the company operating the worksite refused to allow the claimant access to the worksite because in was in violation of a drug and alcohol policy. The court declined to overturn the disqualification, despite the argument that such illegal but decriminalized conduct - smoking a joint on the previous weekend - could not amount to misconduct for EI purposes. The case leaves open the question of whether there would have been misconduct if he had tested positive for marijuana, but because of the zero tolerance policy denying him access to the worksite this amounted to misconduct. | |||
On the issue of whether an employee testing positive for drugs amounts to misconduct, there is authority that this will be the case if they are in violation of the employers drug policy: see ''Lepretre v Canada (Attorney General)'', 2011 FCA 30. | |||
:'''NOTE:''' '''Determinations of “just cause” and “misconduct” by the Commission can be appealed''' and where disqualification is imposed, a client should be | :'''NOTE:''' '''Determinations of “just cause” and “misconduct” by the Commission can be appealed''' and where disqualification is imposed, a client should be advised to appeal. Many claimants mistakenly believe that they are automatically disqualified from EI if they have been fired, however unfairly. Unfortunately, many such claimants do not apply for EI benefits at all, or if disqualified do not realize that they can challenge the Commission’s decision until their 30-day period to appeal expires. | ||
== D. Disentitlement == | == D. Disentitlement == | ||
