Employment Insurance Benefit Entitlement (8:VII): Difference between revisions
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Employment Insurance Benefit Entitlement (8:VII) (view source)
Revision as of 00:54, 9 August 2024
, 9 August 2024→= b) Incompetence is not misconduct
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The legal test for misconduct does not require the Commission to investigate the reasonableness, or legality of the policy which the employee was dismissed for breaching. The test only investigates whether the claimant willfully breached an express or implied duty of their employer, while knowing doing so could result in their termination. An employer may have a policy that is unreasonable and discriminatory, but employees who willfully breach it still commit misconduct. The proper avenues for justice, in such circumstances, is legal action for wrongful dismissal and/or discrimination, not the EI claims system. As stated by the Federal Court of Appeals in [https://canlii.ca/t/j0vwq Dubeau] (2019) “it is not the responsibility of Canadian taxpayers to assume the cost of wrongful conduct by an employer by way of employment insurance benefits.” | The legal test for misconduct does not require the Commission to investigate the reasonableness, or legality of the policy which the employee was dismissed for breaching. The test only investigates whether the claimant willfully breached an express or implied duty of their employer, while knowing doing so could result in their termination. An employer may have a policy that is unreasonable and discriminatory, but employees who willfully breach it still commit misconduct. The proper avenues for justice, in such circumstances, is legal action for wrongful dismissal and/or discrimination, not the EI claims system. As stated by the Federal Court of Appeals in [https://canlii.ca/t/j0vwq Dubeau] (2019) “it is not the responsibility of Canadian taxpayers to assume the cost of wrongful conduct by an employer by way of employment insurance benefits.” | ||
==== b) Incompetence is not misconduct === | ==== b) Incompetence is not misconduct ==== | ||
Incompetence, unsatisfactory performance, inaptitude to perform certain duties or inexperience, is not misconduct, unless done willfully or as the result of insubordination. | Incompetence, unsatisfactory performance, inaptitude to perform certain duties or inexperience, is not misconduct, unless done willfully or as the result of insubordination. | ||
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The onus of proving misconduct rests on the party alleging it. The Commission or employer must prove positively the existence of misconduct and that it caused the loss of employment. | The onus of proving misconduct rests on the party alleging it. The Commission or employer must prove positively the existence of misconduct and that it caused the loss of employment. | ||
A finding of misconduct, with the grave consequences it carries, can only be made from clear evidence and not mere speculation and suppositions. If the employer is unable to provide such evidence, the claimant cannot be denied benefits. | A finding of misconduct, with the grave consequences it carries, can only be made from clear evidence and not mere speculation and suppositions. If the employer is unable to provide such evidence, the claimant cannot be denied benefits. | ||
== D. Disentitlement == | == D. Disentitlement == |