Misconduct

What's New

Questions to Answer
Did claimant lose employment because of the alleged offence (action or omission)? Did claimant commit the alleged offence? Does the alleged offence constitute misconduct? Should a disqualification?.. or disentitlement apply?
References
Act: sections: 29, 30, 31, 33, 34, 49, 51
Legal test
The Act does not define "misconduct". The test for misconduct is whether the act complained of was wilful, or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance. TUCKER A-381-85
Onus of proof
The employer and the Commission must show that claimant lost his/her employment due to misconduct decision to be made on the balance of probabilities FALARDEAU A-396-85. Conflicting evidence should be resolved by accepting the evidence which is reasonable reliable and credible having regard to the circumstances. NANDHA CUB 39640. Note: If the evidence on each side of the issue is equally balanced, the Commission shall give the benefit of doubt to the claimant subsection 49(2) SIEMENS CUB 39868
Key Case Law
TUCKER A-381-85: See Legal test GAGNON A-3-96: Onus of proof JOHNSON A-296-03, MCKAY-EDEN A-402-96: Considers the element of wilfulness. Refers to TUCKER WASYLKA A-255-03: Considers wilfulness of drug consumption. THIBAULT A-573-04, DESSON A-78-04, COOPER A-126-03, CHURCHI A-666-02, GRANSTROM A-444-02: Loss of driver’s license. NEVEU A-72-04, LAVALLÉE A-720-01, CARTIER A-168-00: Failure to pay traffic fines, MEUNIER A-130-96, BRISSETTE A-1342-92, NOLET A-517-91, GAUDET A-990-96: Dealing with criminal charges. Definitions of misconduct LEFEBVRE A-33-03: Falsification of records to hide drug addiction. LATOUR A-344-03: Total disability falsely claimed. NGUYEN A-516-99: Harassment of co-worker. GAULT A-927-96: Refusal to comply with employer's order. Reference to claimant's state of mind. AUCLAIR A-211-06: It is not for the Board of Referees to consider whether dismissal was the appropriate disciplinary action in view of the alleged misconduct. McNAMARA A-239-06, CAUL A-441-05, FLEMING A-274-05, LOCKE A-72-02, MARION A-135-01, LLOYD A-436-95, FAKHARI A-732-95, EDWARD A-94-95 & LANGLOIS A-96-95: Determination of misconduct vs the reasonableness of the employer's decision to dismiss the claimant. JOSEPH A-636-85, CHOINIERE A-471-95, CRICHLOW A-562-97: Type of evidence needed to establish misconduct. TRAYNOR A-492-94: Indefinite period of disqualification BERUBE A-82-00: Upholds CUB 47007, in which the Umpire determined the lack of insured hours since the dismissal to establish a new benefit period. Misconduct vs Voluntary Leaving: DESSON A-78-04, BORDEN A-338-03: Loss of employment due to imprisonment. EASSON A-1598-92, EPPEL A-3-95: Considers the appropriateness of finding that either one of the two reasons applies. McDONALD (Glenmoore) A-297-97: Considers the necessity for the Board of Referees to address the proper issues before them SULAIMAN A-737-93: Misconduct vs voluntary leaving vs constructive dismissal PARKS A-321-97, McDONALD A-297-97: Considers the necessity for the Board of Referees to state and explain its findings of fact MISHIBINIJIMA A-85-06, PEARSON A-315-05, RICHARD A-538-04, CASEY A-570-00, TURGEON A-582-98: Alcoholism is not in itself proof there is no misconduct ARMSTRONG A-81-02: Suspension for refusal to enter alcohol treatment program as previously agreed. McNAMARA A-239-06, SMITH (Robert) A-875-96: Considers misconduct occurring prior to the employment BUIST et al A-92-01: Participation in an illegal strike constitutes misconduct GAGNON A-138-01: Failure to report co-worker's fraud. MURRAY A-245-96: Frequent lateness MORROW A-170-98, MORRIS A-291-98 Supreme Court [27354] : Determining "misconduct" when employer withdraws the original allegations under terms of a settlement agreement; or when a "no fault" settlement for both parties is reached MCDONALD A-152-96: Whether misconduct was the real cause of the claimant's dismissal LANGLOIS A-94-95, EDWARD A-96-95, GUAY A-1036-96, GAUTHIER A-6-98: Considers the scope and seriousness of the actions/omissions. AUCLAIR A-211-06: As the claimant acknowledged making abusive remarks concerning his employer, it was clear that his remarks were deliberate and voluntary. FORGUES A-257-05: Threats, offensive remarks and inappropriate behaviour at work violate the employer/employee relationship of trust and constitutes misconduct.