S. H. v. Canada Employment Insurance Commission

Institution:
Social Security Tribunal of Canada - General Division - Employment Insurance
Member:
Normand Morin
Hearing date:
June 5, 2014
Hearing type:
Teleconference
Between:
S. H. and Canada Employment Insurance Commission
Decision:
Appeal dismissed
Decision date:
June 18, 2014
Reference number:
GE-13-294
Citation:
S. H. v. Canada Employment Insurance Commission, 2014 SSTGDEI 57

Persons in attendance

[1] The Appellant, S. H., participated in the telephone conference (teleconference) held on June 5, 2014.

Decision

[2] The Social Security Tribunal of Canada (the Tribunal) finds that the appeal from the decision of the Canada Employment Insurance Commission (the Commission) to impose on the Appellant a disqualification from receiving Employment Insurance benefits because she lost her employment by reason of her misconduct does not have merit under sections 29 and 30 of the Employment Insurance Act (the Act).

[2] The Social Security Tribunal of Canada (the Tribunal) finds that the appeal from the decision of the Canada Employment Insurance Commission (the Commission) to impose on the Appellant a disqualification from receiving Employment Insurance benefits because she lost her employment by reason of her misconduct does not have merit under sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[3] On April 11, 2013, the Appellant filed an initial claim for benefits effective April 7, 2013. The Appellant stated that she worked for employer Répartition C. G. Inc. from October 17, 2011 to April 10, 2013, inclusively, and that she stopped working for this employer after a voluntary departure (Exhibits GD3-2 to GD3-15).

[4] On May 27, 2013, the Commission informed the Appellant that she was not entitled to receive regular Employment Insurance benefits effective April 13, 2013, because she stopped working for employer Répartition C. G. Inc. on April 3, 2013, because of her misconduct (Exhibits GD3-27 and GD3-28).

[5] On May 31, 2013, the Appellant filed a Request for Reconsideration of an Employment Insurance (EI) decision (Exhibits GD3-29 to GD3-35).

[6] On June 20, 2013, the Commission informed the Appellant that it was upholding the decision rendered in her case on May 27, 2013, disqualifying her from receiving Employment Insurance benefits because she lost her employment by reason of her misconduct (Exhibit GD3 37).

[7] On July 2, 2013 (the date the Tribunal received the document according to the date stamp), the Appellant filed a Notice of Appeal to the Employment Insurance Section of the Tribunal’s General Division to appeal the reconsideration decision rendered in her case by the Commission on June 20, 2013 (Exhibits GD2-1 to GD2-15 and GD3-37).

[8] On July 12, 2013, the Tribunal asked the Appellant to send it, by August 21, 2013, [translation] “a copy of the reconsideration decision that is being appealed”. On August 16, 2013 (the date the Tribunal received the document, according to the date stamp), the Appellant sent the Tribunal the document requested (Exhibit GD2A-1).

[9] On February 13, 2014, the Tribunal informed employer Répartition C. G. Inc. that, if it wanted to be an added party in this matter, it would have to file an application in this regard by February 28, 2014 (Exhibits GD1PAP-1 and GD1PAP-2). The employer did not follow up.

Type of hearing

[10] The hearing was held by teleconference for the reasons set out in the notice of hearing dated May 16, 2014 (Exhibits GD1-1 and GD1-2).

Issue

[11] The Tribunal must determine whether the appeal from the Commission’s decision to impose a disqualification from receiving Employment Insurance benefits on the Appellant because she lost her employment by reason of her misconduct has merit under sections 29 and 30 of the Act.

Applicable law

[12] With regard to a “disqualification” for “misconduct” or “leaving without just cause” subsection 30(1) of the Act sets out that:

A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

  1. (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
  2. (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.

[13] With regard to the “length of the disqualification”, subsection 30(2) of the Act states that:

The disqualification is for each week of the claimant’s benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.

[14] With regard to a “disqualification” or a “disentitlement” from receiving Employment Insurance benefits, paragraphs 29(a) and (b) of the Act specify that:

For the purposes of sections 30 to 33,

  1. (a) “employment” refers to any employment of the claimant within their qualifying period or their benefit period;
  2. (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;

Evidence

[15] The evidence on file is as follows:

  1. a) A Record of Employment (ROE) dated April 26, 2013, indicates that the Appellant worked for employer Répartition C. G. Inc. from October 10, 2011 to April 3, 2013, inclusively, and that she stopped working for this employer after a voluntary departure (Code E – Quit) (Exhibit GD3-16);
  2. b) A medical certificate issued by Dr. Hamel from the Centre de santé et de services sociaux de Beauce, dated April 4, 2013, putting the claimant off work until April 10, 2013, inclusively (Exhibit GD3-18);
  3. c) In a letter addressed to employer Répartition C. G. Inc. on April 11, 2013, the Appellant informed it that she was leaving her employment that same day (Exhibit GD3-19);
  4. d) On May 2, 2013, employer Répartition C. G. Inc. (S. L., general manager) explained that, on April 4, 2013, the Appellant called to say that she would not be coming to work that day because she was ill. He stated that he consequently asked her to provide a medical certificate when she returned to work. The employer sent the Commission (Service Canada) a photograph of a hospital bracelet worn by the Appellant that she had posted online on her Facebook account, as well as a copy of comments she published on this account regarding her employer. The employer explained that he called the Appellant in and gave her the choice of signing one of two letters that he showed her. One was a letter of dismissal and the other was a letter in which she announced that she was voluntarily leaving the company. The employer stated that he did not threaten to dismiss the Appellant, but that he warned her orally on several occasions that she could not have her spouse or child on the work premises. The employer explained that the Appellant left her employment because of what she wrote on her Facebook account, repeated sick leave and non compliance with certain instructions, such as those involving bringing a child to work (Exhibits GD3 20 and GD3-21);
  5. e) On May 2, 2013, employer Répartition C. G. Inc. sent the Commission excerpts from the Appellant’s Facebook page, including a photograph of the Appellant’s hospital bracelet and comments by the Appellant regarding her Employer (Exhibits GD3-22 to GD3-26);
  6. f) On May 31, 2013, the Appellant enclosed a copy of a letter addressed to the Commission des normes du travail (Quebec), dated May 25, 2013, with her Request for Reconsideration of an Employment Insurance (EI) decision. The letter pertained to a complaint involving psychological harassment at work that she filed against her employer (Exhibits GD3 29 to GD3-35);
  7. g) On June 20, 2013, the Appellant explained that she enclosed a copy of the letter addressed to the Commission des normes du travail with her Request for Reconsideration to illustrate her boss’s misconduct (Exhibit GD3-36);
  8. h) On July 2, 2013, the Appellant enclosed, with the Notice of Appeal filed to the Employment Insurance Section of the Tribunal’s General Division, a copy of the following documents:
    1. i. A letter from the Appellant dated May 25, 2013, addressed to the Commission des normes du travail regarding a complaint involving psychological harassment at work that was filed against employer Répartition C. G. Inc. (Exhibits GD2-4 to GD2-8);
    2. ii. A letter from the Appellant dated June 7, 2013, addressed to the Commission des normes du travail regarding the follow-up given to her complaint involving psychological harassment at work (Exhibits GD2-9 to GD2-12);
    3. iii. A medical certificate issued by Dr. Bernard Hamel from the Centre de santé et de services sociaux de Beauce, dated April 4, 2013, putting the Appellant off work until April 10, 2013, inclusively (Exhibit GD2-13);
    4. iv. A stop work form issued by Dr. Bernard Hamel from the Clinique médicale Chaudière on May 27, 2013, indicating that the Appellant was off work completely for a indeterminate period effective April 11, 2013 (Exhibit GD2-14);
    5. v. The Appellant’s letter of resignation, dated April 11, 2013, addressed to employer Répartition C. G. Inc. (Exhibit GD2-15, and GD2-1 to GD2-15).

[16] The following evidence was presented at the hearing:

  1. a) The Appellant went over the circumstances that led to the termination of her employment with employer Répartition C. G. Inc.;
  2. b) She explained that she had worked for employer Répartition C. G. Inc. for a year and a half and that she had never had any problems with any other former employers;
  3. c) She explained that she obtained a medical certificate on May 27, 2013, indicating that she was unable to work effective April 11, 2013, for an indeterminate period because she was experiencing a “burnout” (Exhibit GD2-14);
  4. d) She mentioned that she was unable to work after being the victim of a car accident on October 19, 2013;
  5. e) She indicated that she had been working a new job since April 23, 2014.

Submissions of the parties

[17] The Appellant made the following observations and submissions:

  1. a) She argued that there was a [translation] “huge conflict” between her and her employer. She explained that she resigned because of discrimination, harassment and personal conflict at work (Exhibit GD3-6);
  2. b) She stated that her employer Répartition C. G. Inc. (S. L.) threatened to dismiss her on a number of occasions while she worked for that employer (Exhibits GD3 7 and GD3-29 to GD3-35). She explained that meetings were held with her employer (Mr. S. L.) and sometimes in the presence of C. G., once every two or three months. At these meetings, comments were made regarding her work and threats were made to the effect that she would be dismissed. She also explained that she had never received a written warning from her employer, but only oral warnings (Exhibit GD3 17);
  3. c) She stated that she disagreed with the employer’s statement that he did not threaten to dismiss her (Exhibit GD3-20);
  4. d) She stated that she knew that if she left her employment, she would not be entitled to receive Employment Insurance benefits. She stated that she had conducted several job searches while she was working for employer Répartition C. G. Inc.;
  5. e) She explained that she [translation] “inadvertently” wrote a comment on Facebook regarding her employer. She explained that, on April 4, 2013, when she informed her employer that she would be on sick leave, the employer (Mr. S. L.) shouted at her that if she did not provide him with a medical certificate justifying her absence, he would show her the door (Exhibits GD3-7 and GD3 17). She stated that she went to the hospital on April 4, 2014, and that she then wrote comments regarding her employer on her Facebook page, including [translation] “Damn, my boss is such an idiot...” (Exhibits GD3-17 and GD3 22 to GD3 26);
  6. f) With regard to the comments written about her employer on her Facebook page, the Appellant stated that, “of course she should not have done this but she was not the problem in this situation; rather, her boss was.” (Exhibits GD3-22 to GD3-26 and GD3-36). She stated that these comments were written [translation] “in a fit of anger” (Exhibits GD3-22 to GD3-26);
  7. g) She argued that, by sending an excerpt from her Facebook page to the Commission, the employer interfered with her private life and that this document should not be used as evidence (Exhibits GD3 22 to GD3-26);
  8. h) She disagreed with the employer’s statement that he had given her two letters, one indicating that she was leaving her employment, and the other stating that she had been dismissed, and that he made her choose between these two letters (Exhibit GD3-20). She stated that she had been obligated to sign two identical letters that were presented to her at that time by her employer (one for the Appellant and the other for the employer) at the meeting held on April 11, 2013. She argued that she had been obligated to sign, under threats, a letter of resignation (Exhibits GD3-7 and GD3 17). She explained that she did not have a choice in signing these letters in light of Mr. S. L.’s size (six feet tall) and the tone he used at the time of their meeting;
  9. i) She explained that she did not file a complaint with the Commission des normes du travail earlier because she was unable to do so while she was working and she believed that doing so would [translation] “put her in a negative light with another employer” (Exhibits GD2 1 to GD2-12). She stated that the Commission des normes du travail did not decide in her favour because she did not provide enough evidence or information to support her claim. She explained that the matter had been heard and dismissed, and that her request for an appeal had also been dismissed. She stated that she enclosed a copy of the letter addressed to the Commission des normes du travail with her Request for Reconsideration to illustrate her boss’s misconduct (Exhibit GD3-36);
  10. j) She indicated that she disagreed with the Commission’s arguments that the employer ended her employment on April 3, 2013, because of what she had said about it (Exhibit GD4 1). She explained that she was absent from work on April 4, 2013, that she had been on leave for medical reasons from April 4 to 10, 2013, and that her employment ended on April 11, 2013;
  11. k) She argued that the Commission’s decision in her case was based solely on the allegations of her former employer. She explained that, as a result of the events, she is morally shattered because of the psychological harassment she experienced (Exhibit GD2-2).

[18] The Commission made the following observations and submissions:

  1. a) The Commission explained that subsection 30(2) of the Act sets out the imposition of an indefinite disqualification if it is established that the claimant lost any employment because of their misconduct. The Commission explained that, in order to constitute misconduct within the meaning of section 30 of the Act, the act complained of must have been wilful or deliberate or so reckless as to approach wilfulness. The Commission also pointed out that there must be a causal relationship between the misconduct and the dismissal (Exhibit GD4 3);
  2. b) The Commission determined that, despite the Appellant’s criticisms of her employer, she was in a way forced to resign, meaning that she was dismissed. The Commission explained that, regardless of the Appellant’s criticisms of her employer, she never resigned and she continued to accept her conditions of employment. It was not until she was obliged to choose between resigning and being dismissed that she resigned (Exhibit GD4-3);
  3. c) The Commission pointed out that, as stated in a decision by the Court (Desson, 2004 FCA 303), 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 where a reprehensible act is the real cause of that termination, it must be found that the separation from employment is due to dismissal (Exhibit GD4-3);
  4. d) The Commission emphasized that, as established by the employer’s documentary evidence and by the Appellant’s own admissions, she made offensive and injurious statements about her employer when she wrote messages on her Facebook account after the employer asked her to prove that she was truly unable to work. The Commission emphasized that, as confirmed in the case law, this type of act constitutes misconduct because it severs the bond of trust between an employer and an employee. The Commission was of the opinion that, as shown by the facts and statements on file, it would be difficult to show that these acts were not committed wilfully and deliberately, and that it was clear that the Appellant had to know that she could lose her job if the employer found out (Exhibit GD4-3);
  5. e) The Commission found that the Appellant’s acts, namely, writing messages on Facebook using [translation] “inappropriate language directed at her employer” constituted misconduct within the meaning of the Act because, in this case, the Appellant was dismissed for making injurious statements regarding her employer. The Commission argued that the case law is clear and that the Appellant ought to have known that her conduct could result in her dismissal (Exhibit GD4-4);
  6. f) The Commission emphasized that the Appellant’s complaint to the Commission des normes du travail and her allegations of psychological harassment were made following her dismissal. The Commission pointed out that the Appellant never talked to her superiors in this regard prior to the alleged facts. It added that, in her statement, the Appellant did not indicate to the Commission that she was being psychologically harassed by her employer. The Commission explained that, in this case, what should be considered is that the Appellant was dismissed for writing injurious messages regarding her boss on Facebook. The Commission emphasized that the Appellant’s offensive behaviour and statements constitute misconduct (Exhibit GD4-4);
  7. g) The Commission stated that the Federal Court of Appeal defined the legal concept of misconduct within the meaning of subsection 30(1) of the Act as wilful misconduct, where the claimant knew or ought to have known that her conduct was such that it would result in dismissal. 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; the misconduct must therefore constitute a breach of an express or implied duty resulting from the contract of employment (Lemire, 2010 FCA 314) (Exhibit GD4-4);
  8. h) The Commission emphasized that it did not have a choice but to find that the Appellant had deliberately and wilfully made injurious and offensive statements regarding her employer, and that it was because of this misconduct that she lost her employment (Exhibit GD4-4).

Analysis

[19] Although the Act does not define misconduct, the case law in Tucker (A-381-85) indicates that:

... to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance.

[20] In Tucker (A-381-85), Justice Mark R. Macguigan of the Federal Court of Appeal (the Court) referred to the words of Justice Reed of the Court to the effect that:

Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer’s interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent...

[21] In McKay-Eden (A-402-96), Justice McDonald of the Court added the following:

In our view, for conduct to be considered “misconduct” under the Unemployment Insurance Act, it must be wilful or so reckless as to approach wilfulness.

[22] In Mishibinijima (2007 FCA 36), Justice Nadon of the Court stated as follows:

Thus, 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.

[23] These elements can also be found in the following decisions: Hastings (A-592-06), Lee (A-64-06), Caul (A-441-05), Wasylka (A-255-03), Locke (A-72-02), Langlois (A 94-95) and Secours (A-352-94).

[24] The Court defined the legal notion of misconduct within the meaning of subsection 30(1) of the Act as wilful misconduct, where the claimant knew or ought to have known that her conduct was such that it would result in dismissal. 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; the misconduct must therefore constitute a breach of an express or implied duty resulting from the contract of employment (Lemire, 2010 FCA 314).

[25] The decisions in Cartier (A-168-00) and MacDonald (A-152-96) uphold the principle established in Namaro (A-834-82) to the effect that it must also be established that the misconduct was the cause of the claimant’s dismissal.

[26] In Easson (A-1598-92), Justice Louis Marceau of the Court gave the following explanation:

The notions of “dismissal for misconduct” and “voluntarily leaving without just cause” may be two distinct abstract notions, but they are dealt with together in sections 28 and 30 of the Act - which is quite rational since they both refer to situations where the loss of employment is the result of the deliberate action or actions on the part of the employee - and they are sanctioned similarly by special disqualification, the purpose of which was clearly defined by this Court a long time ago ...

[27] For the act complained of to constitute misconduct under section 30 of the Act, it must have been wilful or deliberate or so reckless as to approach wilfulness. There must also be a causal link between the misconduct and the dismissal.

[28] Moreover, an employment contract can be defined overall as an agreement between an employer and the employee assigning payment of wages and other benefits in exchange for services which, by virtue of this mutual interest, implies respect for rules of conduct agreed by the parties and sanctioned by professional ethics, common sense, general use, or morals.

[29] Many actions or omissions may be considered misconduct in the sense that these actions are incompatible with the intent of an employment contract, conflict with the employer’s activities or undermine the trust between the parties.

[30] Breaches of established standards, instructions, formal or implicit rules or regulations or the collective agreement constitute misconduct where such standards, instructions, rules or regulations are shown to exist and the breach is clearly established.

[31] In this case, the Appellant acknowledged the facts alleged against her by her employer that led to the termination of her employment, namely, writing offensive comments about the employer on her Facebook account or page (Exhibits GD3-23 to GD3-26).

[32] The Appellant’s alleged act clearly constitutes misconduct within the meaning of the Act.

[33] The Tribunal is of the opinion that, even if the ROE issued by the employer indicates “quit” as the reason for separation from employment and the Appellant stated that she voluntarily left in her claim for benefits (Exhibits GD3-2 to GD3-16), the loss of the Appellant’s employment is the consequence of one or more deliberate acts on her part (Easson, A 1598-92).

[34] The Tribunal is of the opinion that the Appellant could not be unaware of the scope of her act. Through her inappropriate comments about her boss, the Appellant severed the bond of trust between her to her employer.

[35] Even though the Appellant pointed out that she had written these comments [translation] “in a fit of anger”, they are the product of behaviour that is incompatible with her continuing her employment with this employer. The Tribunal cannot conceive how the Appellant could have kept her employment with employer Répartition C. G. Inc. and maintained a peaceful and respectful work atmosphere.

[36] The Appellant also emphasized that they were merely comments made outside of a work context and that, by sending an excerpt of her Facebook page to the Commission, the employer interfered in her private life. However, the comments she made were visible to a number of people and could be accessed by most of them through her Facebook account. Furthermore, among the comments that she wrote regarding her boss, the Appellant also made sure to indicate that she did not care if her boss could see what she thought of him (Exhibit GD3-26).

[37] The Tribunal points out that Facebook is a social network with a considerable number of account holders. It is also used by several employers to become familiar with individuals likely to be hired after they submit their applications. In this context, the Tribunal believes that the Appellant should have been sensible in this regard, especially since she stated, at the hearing, that she did not file a complaint with the Commission des normes du travail while she was still working for employer Répartition C. G. Inc. because it would have [translation] “put her in a negative light with another employer”.

[38] The employer explained that the Appellant had [translation] “had to quit because of her comments on Facebook, repetitive sick leave and non-compliance with certain directives, such as bringing a child to work” (Exhibit GD3-20). Then, after being informed by the Commission that the Appellant’s file would be processed to determine whether she was guilty of misconduct, the employer told the Commission that it would send a copy of documents showing the Appellant’s lack of respect for it (Exhibit GD3 21).

[39] The particular events and circumstances leading up to the Appellant’s separation from employment, whether it be the medical leave period from April 4 to 10, 2013, the way the employment was terminated with the signing of a letter of resignation or the complaint filed with the Commission des normes du travail following the separation from employment, cannot obscure or justify the Appellant’s act.

[40] In this context, the Tribunal does not accept the Appellant’s argument that she was the victim of psychological harassment at work by her employer, which led her to take the steps she took with the Commission des normes du travail. This step was taken only after the Appellant posted comments on her Facebook account regarding her employer, and after filing her claim for benefits. (Exhibits GD2-4 to GD2-12). Furthermore, the Appellant explained at the hearing that her complaint to the Commission des normes du travail was dismissed.

[41] The medical certificate putting the Appellant off work as of April 11, 2013, does not constitute relevant evidence in this case because the Appellant had already signed her letter of resignation that same day (Exhibits GD2-14 and GD2-15).

[42] The Tribunal finds that the evidence presented shows that the Appellant stopped working for employer Répartition C. G. Inc. because of her wilful and deliberate act (McKay Eden, A 402-96).

[43] The Tribunal is of the opinion that the Appellant’s alleged act was of such scope that she could normally foresee that it would likely result in the termination of her employment or her dismissal. She knew that her conduct was such as to interfere with her obligations to her employer and that she could be dismissed (Mishibinijima, 2007 FCA 36).

[44] That is why the Tribunal is of the opinion that this act constitutes misconduct within the meaning of the Employment Insurance Act and that the Appellant’s separation from employment is her own fault. The separation from employment is the direct consequence of her alleged act (Namaro, A-834-82; MacDonald, A-152-96; and Cartier, A 168 00).

[45] Basing its decision on the above-mentioned case law and on the evidence presented, the Tribunal finds that the termination of the Appellant’s employment was due to her misconduct and that, consequently, the Commission’s decision to disqualify her from receiving Employment Insurance benefits is justified under the circumstances.

[46] The Tribunal finds that the appeal on this issue does not have merit.

Conclusion

[47] The appeal is dismissed.

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