Employment Insurance Benefit Entitlement (8:VII): Difference between revisions
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“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 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 onus of establishing a misconduct allegation rests on the party alleging it. So, 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 CUBs for examples of what constitutes misconduct justifying lawful dismissal. | |||
==== b) Dishonesty ==== | |||
In its decision in ''McKinley v BC Tel'', [2001] S.C.R. 38, the Supreme Court of Canada held that an employee’s dishonesty does not automatically constitute a blanket grounds for dismissal. Dishonesty is only grounds for dismissal “where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer”. This decision places a duty on the trial judge to determine whether the dismissal was warranted by the nature and degree of the dishonesty, or alternatively, whether lesser sanctions were appropriate. It is likely that the same principle could be applied to EI appeals. For an example of a situation where dishonesty did not amount to just cause see ''Fakhari v Canada (Attorney General)'', A-732-95. | |||
==== c) Theft ==== | |||
In the case of ''Attorney General of Canada v Linda Caul'', 2006 FCA251, the court decided that theft is always misconduct, regardless of the claimant’s state of mind. | |||
==== d) Addiction ==== | |||
In ''Mishibinijima v Attorney General of Canada'', 2007 FCA36, the court examined whether an addiction has the element of wilfulness 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 wilfully. 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. The court declined to overturn the disqualification, despite the argument that such illegal, but decriminalized conduct as smoking a joint on the previous weekend could not amount to misconduct for EI purposes. | |||
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