A worker who refused to comply with her employer’s instruction to work in the office at least one day per week has been denied Employment Insurance benefits after a federal tribunal found she was dismissed for misconduct.
The Social Security Tribunal of Canada’s Appeal Division refused the worker permission to appeal a lower decision, concluding she deliberately ignored her employer’s directions despite being warned her refusal would be considered insubordination.
The case centres on a dispute over remote work arrangements. The worker, identified only as C.G., believed her employment contract permitted her to continue working from home full-time. Her employer disagreed and expected her to attend the office in person at least once weekly.
The employer directed the worker to attend a virtual meeting on July 12, 2024, to discuss her refusal to work in person. She declined to participate, stating she did not want to discuss returning to the office.
When she failed to attend that meeting, the employer suspended her for two days and instructed her to report to the office on July 17, 2024. The worker did not appear at the workplace that day and was subsequently dismissed.
Tribunal rejects intention argument
The worker argued the tribunal made an error of law by misunderstanding what was required to establish intention for misconduct. She maintained her actions were not intentional because she did not breach her employment contract.
The tribunal rejected this reasoning, explaining that misconduct does not require wrongful intention.
“Misconduct does not require that a claimant’s intention be ‘wrongful’—it is sufficient that the conduct be made consciously, deliberately or intentionally,” the tribunal stated. “Where a claimant voluntarily chooses not to comply with an employer policy or direction, the conduct is intentional.”
The tribunal noted that in a July 11 email, the employer explicitly warned the worker that her failure to attend the office once a week when scheduled would be considered “insubordination,” “misconduct,” and “wilful neglect of duty that is not trivial and that has not been condoned by the employer.”
Despite this warning, the worker did not report to the office on July 17 as directed. She testified that she had not planned to attend the workplace that day and instead attempted to log in remotely, only to discover her account had been locked.
The tribunal found no error in the lower decision’s conclusion about intention.
“Regardless of whether the [worker] was justified in ignoring the employer’s direction, or whether she believed she was justified, she understood the employer’s direction and made a deliberate choice to ignore it,” the tribunal stated. “That means her conduct was intentional.”
Settlement agreement does not affect EI entitlement
The worker also argued the tribunal decision contradicted the terms of a settlement agreement she had reached with her employer. She had pursued a wrongful dismissal claim that was settled through mediation for $30,000, allocated partly to legal fees and partly to general damages for an alleged breach of contract.
The tribunal found the private settlement irrelevant to the Employment Insurance analysis.
“The mediated settlement is not a court order, nor does it concern the [worker’s] entitlement to Employment Insurance benefits,” the tribunal noted. “It is a private agreement between the [worker] and the employer accepting certain obligations, one to another.”
The tribunal explained that even if the settlement agreement proved the employer breached the employment contract by requiring in-person work, this would not prevent a finding of misconduct for Employment Insurance purposes.
The legal test for misconduct requires that conduct be wilful—conscious, deliberate or intentional—and that the worker knew or should have known the conduct could interfere with duties toward the employer and that dismissal was a real possibility.
The worker does not dispute that she was told more than once that the employer expected her to work at the office in person, or that she refused. She also does not dispute that she failed to attend the July 12 virtual meeting or that she did not report to the office on July 17 as directed.
The Canada Employment Insurance Commission determined the worker was dismissed for misconduct and disqualified her from receiving benefits. The tribunal concluded her appeal had no reasonable chance of success.
See more coverage of this story in HR Law Canada.
