EI Officer's ruling prevents misconduct allegations unjust dismissal hearing

As many employers are aware, it can be an uphill battle to uphold

BY Contributor 22 Aug. 2019

by Cristina Tomaino

As many employers are aware, it can be an uphill battle to uphold a dismissal for just cause. A recent ruling under the Canada Labour Code (the “Code”) demonstrates the potential ramifications of an Employment Insurance (“EI”) Officer’s rulings on a subsequent unjust dismissal proceeding.

In Alexander v Huron Commodities Inc., Arbitrator Howard Snow held that the employer, Huron Commodities Inc., was prohibited from claiming dismissal for misconduct as an EI Officer had already ruled on the issue.

The complainant was dismissed from employment on January 24, 2018, and applied for EI benefits shortly thereafter. In assessing the complainant’s eligibility for such benefits, the EI officer assigned to the claim contacted both the employer and Mr. Alexander by phone. The employer advised that it had dismissed the complainant for a number of reasons, including missing fuel from his company vehicle. However, the employer had not investigated or pursued the matter and the EI Officer ultimately determined that the complainant had not been terminated for misconduct.

The Canada Employment Insurance Commission (the “Commission”) wrote to the employer and advised that the complainant had been awarded EI benefits as the reason for termination had not been for misconduct. The employer was given the opportunity to provide the Commission with additional information which could change the decision, or to make a request for reconsideration if it disagreed with the decision. The employer chose not to pursue either option.

The complainant then filed an unjust dismissal complaint under the Code. In response, the employer submitted that the complainant had been dismissed for misconduct and the inability to perform the duties of the job.

The adjudicator ruled that the principle of estoppel prevented the employer from arguing that the complainant’s employment had been terminated for misconduct. Snow applied the three-part test for estoppel and held that each of the requirements had been met:

The same question had been decided – whether the complainant had engaged in misconduct;
The prior decision was final; and,
The parties were the same in both proceedings.

This is a troubling case for employers and is at odds with established court decisions where estoppel was held not to apply in similar circumstances. Despite this, the case serves as a cautionary tale when considering whether to appeal an EI Officer’s decision or even provide EI with any information other than that the employer is not challenging entitlement to EI benefits. The team at CCPartners is well versed in all issues related to EI proceedings and unjust dismissal claims and can assist employers throughout the process.