A worker’s refusal to comply with his employer’s directive to return to the office five days a week has resulted in the denial of his Employment Insurance (EI) benefits.
The Social Security Tribunal of Canada’s Appeal Division ruled that the claimant, M.A., had engaged in “wilful misconduct,” thus disqualifying him from receiving benefits. The decision underscores the challenges workers face in adapting to changing workplace policies, particularly as employers increasingly require in-person attendance following the pandemic.
M.A. had initially applied for EI benefits after losing his job in December 2023. The Canada Employment Insurance Commission (the Commission) determined that he was ineligible for benefits because he lost his job due to his own misconduct. This decision was upheld by the General Division, which found that M.A. had failed to comply with his employer’s directive to work onsite five days a week, resulting in his termination.
Unilateral change to contract?
In seeking to appeal the General Division’s decision, M.A. argued that the directive constituted a unilateral change to his employment contract, which had originally required him to be in the office only three days a week, with two days of remote work. He contended that the employer’s mandate breached their contractual agreement and that the General Division had erred in its interpretation of both the law and the facts of the case.
The Appeal Division, however, rejected M.A.’s request for permission to appeal, stating that his case had “no reasonable chance of success.” The Tribunal ruled that the General Division had applied the correct legal principles and that M.A.’s failure to comply with the directive constituted misconduct under the Employment Insurance Act.
‘Misconduct’ under the act
In its decision, the Appeal Division emphasized that “misconduct” under the EI Act includes conduct that is “wilful, which means conscious, deliberate, or intentional conduct,” or conduct that is so reckless that it is almost wilful. The General Division had found that M.A.’s refusal to work onsite despite being aware of the consequences, including the possibility of losing his job, met this definition.
The Appeal Division also addressed M.A.’s argument that the employer’s directive was not part of his original contract. The Tribunal pointed out that while the terms of M.A.’s employment had indeed changed in the fall of 2023, the General Division had found as a fact that he was required to be at the office five days a week. The Tribunal further noted that an employer’s directive does not need to be part of the original employment contract to constitute misconduct under the EI Act.
The Tribunal also considered M.A.’s claim that the General Division made factual errors, including an alleged mistake regarding a clerical error in the employer’s email. The General Division had accepted the employer’s explanation that a reference to December 31, 2023, instead of December 21, 2023, was a clerical error and ruled that this did not affect the outcome of the case. The Appeal Division found no reason to overturn this finding.
Moreover, the Tribunal underscored that its role is not to reweigh the evidence or to resolve disagreements about the application of settled legal principles. The General Division, as the trier of fact, was within its rights to weigh the evidence and make findings based on the material before it.
The decision by the Appeal Division highlights the limited grounds on which an EI appeal can proceed. According to the Tribunal, an appeal can only be heard if there is an arguable case that the General Division either misapplied the law, acted beyond its powers, or made an important error of fact. M.A. failed to meet any of these criteria.
In closing its decision, the Appeal Division reaffirmed that “there are, available to an employee wrongfully dismissed, remedies to sanction the behaviour of an employer other than transferring the costs of that behaviour to the Canadian taxpayers by way of unemployment benefits.” This statement echoes the principle that EI benefits are not intended to address wrongful dismissal claims, which should be pursued through other legal avenues.
For more information, see MA v Canada Employment Insurance Commission, 2024 SST 732 (CanLII).
