Appeal Allowed: Misconduct Justifies Termination

[TRANSLATION] Citation: Canada Employment Insurance Commission  v  BE , 2026  SST  106 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] Decision under appeal: General Division decision dated October 21, 2025 (GE-25-2325) Tribunal member: [NAME] of hearing: Videoconference Hearing date: January 21, 2026 Hearing participants: Appellant Appellant’s representative Respondent Decision date: February 17, 2026 File number: AD-25-725 On this page Decision Overview Issues Analysis Remedy Conclusion Decision [ 1 ] The appeal is allowed. The General Division made an important error of fact. [ 2 ] I am giving the decision that the General Division should have given. The Claimant lost her job because of misconduct. This means that she is disqualified from receiving Employment Insurance ( EI ) benefits. Overview [ 3 ] The Claimant, [NAME]., applied for EI  regular benefits. The Canada Employment Insurance Commission (Commission) decided that she wasn’t entitled to regular benefits. This was because she stopped working as a result of misconduct. Footnote 1 [ 4 ] The Claimant asked for the decision to be reconsidered. The Commission decided that it was upholding its decision. Footnote 2 [ 5 ] The Claimant appealed this decision to the General Division. The General Division allowed her appeal. Footnote 3 The General Division found that the Commission hadn’t proven that she lost her job because of misconduct. It decided that she was entitled to EI  benefits. Issues [ 6 ] I have to decide the following issues: a) Did the General Division base its decision on an important error of fact regarding why the job was terminated? b) If so, what is the appropriate remedy? Analysis [ 7 ] I can intervene if the General Division made one of the following errors: It breached the principles of procedural fairness. It made an error of jurisdiction. It made an error of law. It based its decision on an important error of fact. Footnote 4 The General Division based its decision on an important error of fact regarding why the job was terminated [ 8 ] An important error of fact happens when the General Division bases its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Footnote 5 A factual finding that the evidence on file directly contradicts might constitute an important error of fact. Footnote 6 [ 9 ] The General Division found that the Claimant lost her job because she refused to sign an agreement. The agreement was asking her to work more hours in exchange for five weeks of unpaid leave. Footnote 7 [ 10 ] The Commission argues that the evidence on file doesn’t support this finding of fact. Footnote 8 The evidence rather shows that the Claimant lost her job because she was absent without permission. This was during the period she had asked to take as unpaid leave—that is, from February 17 to March 20, 2025. [ 11 ] I find that the evidence on file directly contradicts the General Division’s finding of fact. The General Division based its decision on an error of fact that it made without regard for the evidence on file. The General Division based its decision on an important error of fact when it found that the Claimant was let go because she refused to sign an agreement [ 12 ] The evidence on file about the Claimant being let go contradicts the General Division’s finding of fact. The General Division said that she asked for her [translation] “vacation” following the usual procedure. She asked for it at the same time as in past years. The employer told her to do so in November. Footnote 9 She didn’t expect her request for unpaid leave to be denied. Footnote 10 [ 13 ] But that isn’t the issue. The Claimant wasn’t let go for asking to take leave without following an established procedure. She was let go because she was absent from work without permission. The General Division also recognized in its decision that the employer had told her she would have to be at work. The employer also told her that she would be let go as of March 15, 2025, if she didn’t show up for work. Footnote 11 The Claimant herself told the Commission during a telephone interview that she had been let go for taking vacation without permission. Footnote 12 By doing this, she refused to carry out her duties toward her employer, even though she had been specifically told that she had to be at work. [ 14 ] In fact, in the notice of dismissal dated January 20, 2025, the employer wrote that the request for unpaid leave for the period from February 17 to March 20, 2025, was denied because the Claimant didn’t want to sign the agreement. Footnote 13 The notice told her that she would be let go if she were absent from her position during that period . [ 15 ] So, finding that the Claimant was let go for refusing to sign an agreement is an important error of fact. [ 16 ] The evidence shows that the agreement proposed to the Claimant was made to try to reach a compromise. That compromise would allow her to take unpaid leave, without putting the employer in a difficult position regarding the work that had to be done during that time. It should be noted that she presented the employer with an accomplished fact. She had already booked and paid for plane tickets before the employer approved the unpaid leave. She emailed her employer in November 2024 asking for unpaid leave from February 17 to March 20, 2025. She included proof of a travel booking in her email. Footnote 14 She admitted to her employer right away that she should not have booked her vacation without first talking about it. Footnote 15 [ 17 ] The employer didn’t appreciate how the Claimant proceeded, but it was open to giving her permission to take unpaid leave if she met certain conditions. It was the Claimant herself who had proposed working a few Fridays to make up for when she would be absent. She normally worked from Monday to Thursday. Footnote 16 The Claimant and the employer agree that, in the week of December 9, 2024, the employer gave her a potential letter of agreement. Footnote 17 This letter said that any business had the right to accept or deny any leave request that fell outside its normal organizational framework. Footnote 18 The employer said that the timing of the absence wasn’t good. But he was willing to give her permission to take leave under the following conditions: The Claimant would work five days a week from January 6 to 31, from February 3 to 14, from March 21 to 31, and from April 1 to 30, 2025. The Claimant would stay available remotely. The Claimant would transfer her ongoing projects that were scheduled to be installed in the spring of 2025. She would not be able to handle these projects because she would be absent. The Claimant would tell her clients that she would be absent. She would make sure that they agreed she would not be able to answer them during the leave. Any future leave request would be submitted six months before the scheduled leave date. Footnote 19 [ 18 ] The Claimant replied to the employer by letter on January 6, 2025. Footnote 20 She wrote that she agreed to work the four Fridays in January, and that she would be available remotely for the two Fridays in February. She also wrote that she wanted to be absent for four consecutive weeks between January and the end of April in the coming years. This would be [translation] “without negotiation and without restriction.” Footnote 21 [ 19 ] The employer then sent her the initial agreement proposal again, adding that she had to work 11 Fridays for her to get permission to take unpaid leave. Footnote 22 [ 20 ] The Claimant testified that her director called her in for a meeting on January 20, 2025. Her manager then asked her verbally whether she would be signing the agreement proposal. Footnote 23 She said that she wasn’t ready to work on Fridays. Also, she could not give the dates she would be taking leave six months in advance without being guaranteed that they would be approved. Footnote 24 [ 21 ] The Claimant recognized before the General Division that she knew if she didn’t accept the terms of the agreement, she would not get permission to be absent. She would also be let go. Footnote 25 She testified that she could not change the dates she was travelling because she had already booked and paid for her plane tickets. She said that she could not back down and say that she would no longer be going. Footnote 26 There is no dispute that she refused to sign the agreement proposal. Footnote 27 She said that, after she told the director that she would not sign but would in fact be going on vacation, the director gave her the notice of dismissal. Footnote 28 At that meeting, the employer told her verbally and in writing that she would be let go if she were absent from February 17 to March 20, 2025. Footnote 29 [ 22 ] The notice of dismissal could not be clearer. Footnote 30 First, the subject line said [translation] “Notice of Dismissal.” Then, it said that, if the agreement wasn’t signed, unpaid leave was denied. The employer wrote that her being present at her position was required and demanded . The employer added that if she wasn’t at work, this would mean that she had abandoned her position and would automatically result in her being let go on March 15. It isn’t disputed that the Claimant went on a trip, even though the employer hadn’t given her permission to take this unpaid leave. Footnote 31 She told the Commission that she was officially let go on March 15, 2025. Footnote 32 [ 23 ] Permission for unpaid leave depended on the signing of an agreement between the Claimant and the employer to make up for the five-week absence she asked for. So, they communicated to try to reach an agreement. But the consequence of her refusing to sign the agreement wasn’t her being let go. Rather, the consequence of refusing to sign the agreement was that the employer didn’t give permission for the unpaid leave. It was only because she told her employer that she would be going on a trip without permission that it then warned her she would be let go if she took leave anyway. [ 24 ] The important error of fact is based on the General Division making a finding—on why the job was terminated—that the evidence didn’t support. [ 25 ] Given that the General Division based its decision on an important error of fact, I can intervene and fix the error. Footnote 33 Remedy I am giving the decision that should have been given [ 26 ] The Commission asked me to give the decision that should have been given. Footnote 34 It wants me to find that the Claimant lost her job because of misconduct since she was absent from work without permission. The Commission says that she knew or should have known that she could lose her job if she was absent without permission. This is because the employer sent her the notice of dismissal telling her the consequences of being absent. The Commission says that the duty to be present for the employer is part of the employment contract. By being absent without permission, she breached a duty, and she should have known that this would lead to a consequence. [ 27 ] At the hearing, the Claimant said that she thought the Appeal Division could give the decision that should have been given if the General Division made an error. [ 28 ] That is what I will be doing. The Act allows me to substitute my decision for that of the General Division, and to decide any question of law or fact that is necessary to dispose of an appeal. Footnote 35 The Claimant was let go because she went on a trip even though the employer had denied her unpaid leave [ 29 ] The notice of dismissal was given to the Claimant only after she confirmed that she intended to be absent from work, without agreeing to work Fridays in return. [ 30 ] The employer tried to find a compromise that would support its operations while allowing the Claimant to take five weeks of unpaid leave. The request for unpaid leave came at a time when the business needed its employees. Footnote 36 I also note that the Claimant testified that she had five weeks of paid vacation per year. Footnote 37 So, she asked her employer for an additional five weeks of unpaid leave. But, since she refused the proposed compromise, the request for unpaid leave was expressly denied on January 20, 2025. She would be let go if she went on vacation anyway. The General Division also noted that she could easily have accepted the agreement that the employer proposed in exchange for her vacation. Footnote 38 The General Division also recognized in its decision that the employer told her that she would have to be at work, and that she would be let go as of March 15, 2025, if she didn’t show up for work. Footnote 39 [ 31 ] The Claimant argued before the Appeal Division that she was removed from her position on February 13, 2025, because she had to give back all her personal belongings. Footnote 40 She says that she was let go before she could be held responsible for being absent from her position. Footnote 41 The evidence before the General Division showed that she cleared out her office on February 12, 2025. Footnote 42 The employer said that her last day of work was February 14, 2025. Footnote 43 [ 32 ] The Claimant cleared out her office because she had told her employer that she was going on a trip anyway, and so she would not be going back to work after that. She had told her employer that [translation] “her decision was made” Footnote 44 as early as January 20, 2025. So, the employer knew that she would be absent from work, even without permission. [ 33 ] The Claimant testified before the General Division that the employer advertised her position to replace her as soon as she left on her trip. Footnote 45 She argued before the Appeal Division that advertising her position before she was officially let go showed that her employer wanted to replace her. Footnote 46 But by then, the employer had noticed that she wasn’t showing up for work like she was supposed to. [ 34 ] In addition, both the Claimant and the employer said that she was paid until March 15, 2025, as shown on the Record of Employment. The evidence does show that the employer paid her until March 15, 2025. This shows that she was let go only on that day. Footnote 47 So, I find, on a balance of probabilities, that she was let go only on March 15, 2025, after being absent from work for many weeks. The consequences of her being absent were established in advance: She would be let go if she went on vacation for five weeks without permission. That is what happened. [ 35 ] The Claimant recognizes having received and read the notice of dismissal. It said that she had to be present during the period she had asked to take as unpaid leave. If she had decided to cancel or postpone her trip and show up for work, she would not have been let go. The employer even tried to work something out with her by proposing that she work certain Fridays to make up for being absent. The employer wanted her to sign the agreement so that it could give her permission to take unpaid leave. Without her signing, the employer would not give her permission to take unpaid leave. The fact that the Claimant was absent from work without permission is what led to her being let go. The Claimant lost her job because of misconduct [ 36 ] Now that I have established why the job was terminated, I have to decide whether it amounts to misconduct. The Commission says that the Claimant lost her job because of misconduct. Footnote 48 She denies having lost her job because of misconduct. Footnote 49 [ 37 ] The legal test for establishing whether there was misconduct is the following. First, the Claimant’s conduct had to have been: wilful, conscious, deliberate, or intentional, Footnote 50 or so reckless that it was almost wilful [ 38 ] There is no doubt that the Claimant being absent from work was wilful. She decided not to go to work and to go on a trip, even though her unpaid leave had been denied. She testified that she would not change her travel booking, even though the January 20, 2025, letter told her that she could not be absent. Footnote 51 She chose to go on a trip because she had already bought her tickets. Footnote 52 [ 39 ] So, the act of being absent from work was wilful and conscious. The Claimant knowingly chose not to show up for work from February 17 to March 20, 2025. [ 40 ] Second, for there to be misconduct, the Claimant had to know or should have known that she was going to lose her job because of her actions. In this case, it seems clear to me that she knew she would be let go if she were absent as of February 17, 2025. [ 41 ] In fact, as noted earlier in my decision, the notice of dismissal explicitly told the Claimant that she would be let go if she didn’t show up for work from February 17 to March 20, 2025. The notice clearly told her that she didn’t have permission to take her leave. She recognized that she had received the letter on January 20, 2025, and that her director had verbally told her what it said. So, she can’t say that she didn’t know she could be let go. [ 42 ] In addition, the Claimant testified that her employer told her that if she signed the agreement to work Fridays to make up for being absent, they would approve her [translation] “vacation.” But if she didn’t sign, she would be let go. Footnote 53 So, she knew what the consequences would be if she were absent without agreeing to make up her time. She also said that her director proposed the agreement to try to keep her position. Otherwise, the [COMPANY] was going to let her go. Footnote 54 [ 43 ] At the General Division hearing, the member pointed out to the Claimant that the employer had told her in a letter dated January 20, 2025, that she would be let go if she went on vacation. Footnote 55 The General Division asked her whether she had wanted to change her plans. She testified that her vacation had already been booked and paid for, so she could not cancel it. She would not get refunded. She confirmed that she had, in fact, gone on a trip, even though the employer had sent her a letter. [ 44 ] So, it appears from what the Claimant testified that she was aware she would be let go if she were to be absent from work without permission. She chose to be absent because she didn’t want to lose the money she had already spent on her trip. She was free to make that choice. But she was aware of the consequences that would come from it. [ 45 ] The Claimant testified that she thought her employer could have given her a letter of reprimand or suspended her when she got back from her trip. Footnote 56 So, there is some recognition that she did something that she should not have done, and that she knew she would face a consequence from her employer. [ 46 ] The Claimant disagrees with the decision to let her go. She finds that the employer overreacted. In fact, she turned to the Commission des normes, de l'équité, de la santé et de la sécurité du travail [Quebec’s labour standards commission] to challenge her dismissal. This process is ongoing. But the Appeal Division can’t look at whether letting her go was justified. I can’t consider the nature of the penalty. The fact that the employer could or should have penalized her less severely under labour law isn’t relevant for the purpose of deciding whether there was misconduct. Footnote 57 [ 47 ] I also note that misconduct doesn’t require wrongful intent. Rather, I have to make sure that the Act is followed. The Act disqualifies a claimant from receiving benefits if they lose a job because of misconduct. Footnote 58 [ 48 ] The Federal Court of Appeal said that an employee who, through their own actions, can no longer perform the services required from them—and lose their job as a result—can’t force others to bear the burden of their unemployment. Footnote 59 Also, the Appeal Division has already given decisions finding that being absent from work without permission constitutes misconduct. Footnote 60 Conclusion [ 49 ] The appeal is allowed. The General Division made an important error of fact. I gave the decision that should have been given. The Claimant lost her job because of misconduct. This means that she is disqualified from receiving benefits. Footnotes Footnote 1 See the notice of decision at GD3-29. Return to footnote 1 referrer Footnote 2 See the notice of decision at GD3-41. Return to footnote 2 referrer Footnote 3 See para 1 of the General Division decision at AD1-12. Return to footnote 3 referrer Footnote 4 See section 58(1) of the Department of Employment and Social Development Act  ( DESD  Act). Return to footnote 4 referrer Footnote 5 See section 58(1)(c) of theDESD Act. Return to footnote 5 referrer Footnote 6 [NAME]  v  Canada (Attorney General), 2022  FCA  47 at para 41. Return to footnote 6 referrer Footnote 7 See para 17 of the General Division decision at AD1-14. Return to footnote 7 referrer Footnote 8 See the Commission’s arguments at AD3-7. Return to footnote 8 referrer Footnote 9 See para 28 of the General Division decision at AD1-17. Return to footnote 9 referrer Footnote 10 See para 28 of the General Division decision at AD1-17. Return to footnote 10 referrer Footnote 11 See para 16 of the General Division decision at AD1-14. Return to footnote 11 referrer Footnote 12 See the notes from a telephone conversation with the Claimant at GD3-21. Return to footnote 12 referrer Footnote 13 See the notice of dismissal at GD3-20. Return to footnote 13 referrer Footnote 14 See the Claimant’s email asking for unpaid leave on November 28, 2024, at GD6-5. Return to footnote 14 referrer Footnote 15 See the email that the Claimant sent to her employer at GD6-5. Return to footnote 15 referrer Footnote 16 See the email that the Claimant sent to her employer at GD6-5. Return to footnote 16 referrer Footnote 17 See GD3-18. The employer’s representative told Service Canada that the agreement proposal was provided in the week of December 9, 2024, but that the Claimant refused to sign it. She confirmed in her own letter dated January 6, 2025, that she had received that letter. See her letter at GD6-8. Return to footnote 17 referrer Footnote 18 See the letter that the employer sent at GD3-35. Return to footnote 18 referrer Footnote 19 See the employer’s letter at GD3-35. Return to footnote 19 referrer Footnote 20 See the Claimant’s letter at GD6-8. Return to footnote 20 referrer Footnote 21 See the Claimant’s letter at GD6-8. Return to footnote 21 referrer Footnote 22 See the letter at GD6-9. Return to footnote 22 referrer Footnote 23 See the reconsideration request at GD3-34. Return to footnote 23 referrer Footnote 24 See the notes from a telephone conversation with the Claimant at GD3-21. Return to footnote 24 referrer Footnote 25 Listen to the recording of the General Division hearing at 0:06:30. Return to footnote 25 referrer Footnote 26 Listen to the recording of the General Division hearing at 0:26:55. Return to footnote 26 referrer Footnote 27 See the notes from a telephone conversation with the Claimant at GD3-21. Return to footnote 27 referrer Footnote 28 See the Claimant’s reconsideration request at GD6-11. Return to footnote 28 referrer Footnote 29 See the notes from a conversation with the employer at GD3-18. Return to footnote 29 referrer Footnote 30 See the notice of dismissal at GD3-20. Return to footnote 30 referrer Footnote 31 See the notes from a telephone conversation with the Claimant at GD3-39. She said that she went on vacation even after being told that her leave request had been denied. Return to footnote 31 referrer Footnote 32 See the notes from a telephone conversation with the Claimant at GD3-21. Return to footnote 32 referrer Footnote 33 See section 59(1) of the DESD  Act. Return to footnote 33 referrer Footnote 34 See the Commission’s arguments at AD3-8. Return to footnote 34 referrer Footnote 35 See the powers that sections 59(1) and 64 of the DESD  Act give to the Appeal Division. Return to footnote 35 referrer Footnote 36 See the notes from a telephone conversation with the employer at GD3-18. Return to footnote 36 referrer Footnote 37 Listen to the recording of the General Division hearing at 0:08:15. Return to footnote 37 referrer Footnote 38 See para 35 of the General Division decision at AD1-19. Return to footnote 38 referrer Footnote 39 See para 16 of the General Division decision at AD1-14. Return to footnote 39 referrer Footnote 40 See the Claimant’s arguments at AD4-3. Return to footnote 40 referrer Footnote 41 See the Claimant’s arguments at AD4-3. Return to footnote 41 referrer Footnote 42 See the reconsideration request at GD3-34. Return to footnote 42 referrer Footnote 43 See the notes from a telephone conversation with the employer at GD3-18. Return to footnote 43 referrer Footnote 44 See the reconsideration request at GD3-34. Return to footnote 44 referrer Footnote 45 Listen to the recording of the General Division hearing at 0:06:53. Return to footnote 45 referrer Footnote 46 See the Claimant’s arguments at AD4-3. Return to footnote 46 referrer Footnote 47 See the Record of Employment at GD3-16. Return to footnote 47 referrer Footnote 48 See the Commission’s arguments at AD3-8. Return to footnote 48 referrer Footnote 49 See the Claimant’s arguments at AD4-3. Return to footnote 49 referrer Footnote 50 See the Federal Court of Appeal decision in Canada (Attorney General)  v  [NAME] , 2006  FCA  251 at para 4. Return to footnote 50 referrer Footnote 51 Listen to the recording of the General Division hearing at 0:27:25. Return to footnote 51 referrer Footnote 52 See the proof of the travel booking at GD6-6. Return to footnote 52 referrer Footnote 53 Listen to the recording of the General Division hearing at 0:06:30. Return to footnote 53 referrer Footnote 54 Listen to the recording of the General Division hearing at 0:13:47. Return to footnote 54 referrer Footnote 55 Listen to the recording of the General Division hearing at 0:26:57. Return to footnote 55 referrer Footnote 56 Listen to the recording of the General Division hearing at 0:07:25. Return to footnote 56 referrer Footnote 57 See the Federal Court of Appeal decision in Canada (Attorney General)  v  [NAME] , 2006  FCA  251 at para 6. Return to footnote 57 referrer Footnote 58 See section 30(1) of the Employment Insurance Act . Return to footnote 58 referrer Footnote 59 See the Federal Court of Appeal decision in Canada (Attorney General)  v  [NAME] , 2004  FCA  219 at para 3. Return to footnote 59 referrer Footnote 60 See the Appeal Division decisions in FG  v  Canada Employment Insurance Commission , 2024  SST  633; and BC  v  Canada Employment Insurance Commission , 2023  SST  1371. Return to footnote 60 referrer