X v Canada Employment Insurance Commission
- Social Security Tribunal decision - General Division - Employment Insurance Section
- Lucie Leduc
- Hearing date:
- May 7, 2019
- Hearing type:
- X and Canada Employment Insurance Commission and Y. D.
- Appeal dismissed
- Decision date:
- May 13, 2019
- Reference number:
- X v Canada Employment Insurance Commission and Y. D., 2019 SST 570
 The appeal is dismissed.
 The Claimant worked for the company X for 26 years as a sanitary product sales representative. One day, he tried to get samples for a client through another client account after the customer service department initially denied him. The employer decided to investigate the Claimant’s actions. At the end of the investigation, the employer decided to dismiss the Claimant for a serious breach.
 The Claimant applied for Employment Insurance benefits in November 2018, shortly after his dismissal. The Employment Insurance Commission (Commission) accepted his claim and began paying him benefits.
 The employer is challenging the Commission’s decision and argues that the Claimant lost his employment because of his own misconduct and that he should be disqualified from benefits accordingly.
 The Appellant did not attend the hearing. The notes in the file indicate that the Appellant’s representative contacted the Tribunal a few days before the hearing to notify it that they considered the file complete and that they had nothing to add. Based on that information, the Tribunal is satisfied that the Appellant received the notice of hearing and made a conscious decision not to attend. Consequently, the Tribunal proceeded with the hearing in the Appellant’s absence under the authority of section 12 of the Social Security Tribunal Regulations.
 The Tribunal must determine whether the Claimant lost his employment because of his own misconduct.
 Generally, section 30 of the Employment Insurance Act (Act) provides that a claimant who loses their employment because of their misconduct is disqualified from receiving any benefits.
Issue: Did the Appellant lose his employment because of his own misconduct?
 Each case is a specific one and must be analyzed based on its particular facts. For misconduct, the burden of proof rests on the employer and the Commission, which must show on a balance of probabilities that the evidence supports the alleged misconduct (Lepretre v Canada (Attorney General), 2011 FCA 30; Canada (Attorney General) v Granstrom, 2003 FCA 485; Crichlow, A-562-97).
 For the reasons that follow, I find in this case that the Appellant did not lose his employment because of his own misconduct.
 Before I can determine whether certain actions or behaviour constitute misconduct, I must first ask myself whether the Claimant actually committed the alleged acts. For the Tribunal to conclude that there was misconduct, it must have before it relevant facts and sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour constituted misconduct (Meunier, A-130-96). In this case, the Claimant admitted to the incident that lead to his dismissal. He does not deny having acted as the employer alleges.
 At the hearing, he related the incident in question clearly and logically. I accept that the Claimant was a sanitary product sales representative for X. He had just secured a new department at his biggest client, which represented a significant gain for the company and his portfolio. He had worked hard for about two years to secure this department. Unfortunately, after the first delivery of products to his new client, it contacted him to inform him that it was displeased with the fact that some items were missing from the delivery. The Claimant wanted to remedy the situation as quickly as possible and conducted his own investigation with the delivery services. He was never truly able to find out where the error occurred or if the merchandise had actually been delivered, but he maintains that he did not doubt his client’s word that the order was incomplete. The Claimant wanted to preserve the relationship of trust with his new client and therefore tried to find solutions to remedy the situation. It was in that spirit that he thought it best to order samples of the missing materials to give to the client. He maintains that sample ordering is a common practice in his profession. As a result, he contacted X’s customer service to tell them about the precise situation and order promotional samples of those items, which would be deducted from his salary, as is the usual practice. However, the customer service employees denied the transaction.
 The Claimant maintains that he tried to contact the leader of the customer service team to ask for her assistance with this file, telling her that he was trying to regain the client’s trust. The team leader never called him back. The Claimant stated that he was feeling pressure from his client and that he therefore tried to order the promotional sample items from another client account. This transaction was also denied, and the Claimant’s boss (X) asked him to go to the sales department to meet with the X’s vice president of sales (X). At that November 1, 2018, meeting, the Claimant was informed that he was suspended without pay pending an investigation. He said he explained the situation in detail but that his bosses were opposed to his idea and expressed their disagreement with how he had intended to correct the situation. On November 15, X and X again asked the Claimant to meet them. X informed him that he had acted improperly by asking for samples twice, and the Claimant was dismissed.
 I must therefore analyze whether the Claimant’s actions as described earlier constitute misconduct within the meaning of the Act. The word “misconduct” is not defined in the Act, but the courts have established principles through the case law to guide decision makers. It is largely a question of circumstances (Bedell, A-1716-83). To arrive at a finding of misconduct, the Tribunal must analyze the facts and reach the conclusion that the alleged breach is of such scope that its author could normally expect that it would be likely to result in dismissal (Locke, 2003 FCA 262; Cartier, 2001 FCA 274; Gauthier, A-6-98; Meunier, A-130-96).
 In Canada (Attorney General) v Hastings (2007 FCA 372), the Court restated the principles from Tucker, A-381-85, on the concept of misconduct and the need for the mental element to be present. The Court therefore established that “there will be misconduct where the claimant’s conduct is wilful, i.e. in the sense that the acts that lead 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.”
 On this fundamental aspect of the concept of misconduct, I am not satisfied that, in his very precise circumstances, the Claimant could normally foresee that his messages would be likely to result in his dismissal. The Claimant’s actions to try to circumvent the system to achieve his ends and secure a solution for his client’s satisfaction may have been reprehensible. However, a reprehensible act does not automatically lead to a finding of misconduct in Employment Insurance. The Claimant’s state of mind is relevant to this analysis (Locke, 2003 FCA 262), and the Claimant’s testimony has convinced me that he could never have imagined that his attempts to replace his client’s lost products could potentially lose him his employment. On the contrary, I accept, based on the evidence, that he was instead in [translation] “solution mode.”
 It is recognized that the employer has no policy governing representatives’ practice of ordering promotional samples. The Claimant therefore did not deliberately disobey this rule because it did not exist. In terms of the employer’s code of ethics, I have read it and I cannot find that one or more provisions were violated. The employer argues that the Claimant failed in his duty of loyalty. I agree with the Commission that the examples stated in the employer’s policy that lead to immediate dismissal are very different from the Claimant’s actions (for example, theft, fraud, embezzlement, drugs, and alcohol). In my opinion, the situation related by the Claimant is not comparable to that type of disloyalty. Furthermore, I accept based on the evidence that the Claimant has not lacked integrity in business. He instead asked for assistance and explained his situation openly, believing that the customer service department would cooperate. When he received no assistance or resources, he tried on his own to find a way to supply all of his client’s order. What is more, he was ready to pay the small cost of the order from his own pocket.
 Furthermore, I note that the code of ethics stresses the importance of clients, suppliers, and partners in section 4.2. It states that [translation] “it is essential and vital that you do everything possible to maintain good relations with clients, suppliers, and other company partners and to provide them with exceptional service in keeping with the X’s reputation. [...] Each staff member must consider clients X’s priority and raison d’être and must make sure their satisfaction remains a priority according to internal rules and directives.” Given the fact that there is no internal directive or rule about promotional samples and the Claimant and his client’s specific situation, it seems that the Claimant acted rightly in the best interests of his client’s satisfaction and to maintain good relations. How could he have therefore expected to be dismissed following his attempts to maintain good relations with his new client, who was pressuring him?
 After 26 years of loyal service, the Claimant said he was extremely surprised by this outcome for actions he took in good faith and, according to him, in the employer’s interests. He repeated several times that he thought he was doing the right thing. Consequently, it is difficult to find that the Appellant knew or should have known that his actions were likely to result in his dismissal. On the contrary, the Claimant believed he was acting in the best interests of his employer and his client to maintain trust on both sides. I detect no carelessness in the Claimant’s conduct. I accept his statement that, at age 60 and after 26 years of service, he would never have deliberately done anything to place his employment at risk. He was a few years from retirement and knew very well that it is difficult to find employment at his age.
 It is not my role to judge or decide on the penalty the employer imposed on the Claimant. The employer exercised its management right, and if the Claimant does not agree with the imposed measure, he can exercise the remedies available to him from other authorities. That said, I am still of the view that the employer failed to show that the Claimant’s breach was such that he should have known that it was likely to result in his dismissal. As a result, the employer failed to meet its burden of proof.
 The appeal is dismissed.
Method of proceeding:
May 7, 2019
Y. D., Added Party
- Date modified: