Claimant Denied Employment Insurance Benefits Due to Misconduct

Citation: DM  v  Canada Employment Insurance Commission , 2026  SST  51 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] Decision under appeal: Canada Employment Insurance Commission reconsideration decision (767005) dated December 9, 2025 (issued by Service Canada) Tribunal member: [NAME] of hearing: Videoconference Hearing date: December 30, 2025 Hearing participants: Appellant Appellant’s representative Decision date: January 5, 2026 File number: GE-25-3405 On this page Decision Overview Issue Analysis Conclusion Decision [ 1 ] The appeal is dismissed. The General Division disagrees with the Appellant. [ 2 ] The Canada Employment Insurance Commission (Commission) has proven that the Appellant was dismissed from his job because of misconduct (in other words, because he did something that caused him to be dismissed from his job). This means that the Appellant is disqualified from receiving Employment Insurance ( [NAME] ) benefits. Footnote 1 Overview [ 3 ] The Appellant was dismissed from his job because of attendance issues. The employer said the Appellant didn’t show up to work and didn’t call for five days in a row. It said this went against its policy. [ 4 ] The Appellant says he didn’t go to work because he was sick and his manager told him he could go home. He says he didn’t have issues at work until he got a new supervisor. [ 5 ] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant lost his job because of misconduct. Because of this, the Commission decided that the Appellant is disqualified from receiving [NAME] benefits. Issue [ 6 ] Did the Appellant lose his job because of misconduct? Analysis [ 7 ] The law says you can’t get [NAME] benefits if you lose your job because of misconduct. This applies when the employer has let you go. Footnote 2 [ 8 ] To answer the question of whether the Appellant was dismissed from his job because of misconduct, I have to decide two things. First, I have to determine why the Appellant was dismissed from his job. Then, I have to determine whether the law considers that reason to be misconduct. Why was the Appellant dismissed from his job? [ 9 ] I find that the Appellant was dismissed from his job because he didn’t report to work or call in to say he would be absent from work for five consecutive days. [ 10 ] The Appellant says he was sick and could not work outside. He says his former manager said there was no work inside, so he could go home. He also says he didn’t have any issues at work until he got a new supervisor who discriminated against him based on his race. [ 11 ] The Commission says the employer dismissed the Appellant because he went against the employer’s attendance policy when he didn’t report his absence from work from September 9, until his return to work on September 17, 2025. [ 12 ] The Appellant applied for [NAME] regular benefits on September 28, 2025. In his application, he said the reason he was no longer working was that he was on strike or lockout. But on September 24, 2025, the employer issued a record of employment ( ROE ) that said the last day it paid the Appellant for was September 9, 2025, and that it had dismissed him from his job. [ 13 ] The employer told the Commission that it had dismissed the Appellant because after he left work on September 9, and he didn’t report to work or call for five consecutive days. The employer said that when the Appellant showed up for work on September 17, 2025, he was dismissed. [ 14 ] The Commission asked the Appellant about what the employer said. He explained that he had worked inside for two days because he was sick. He said he was asked to work outdoors, but he declined to do so because he was sick. He said he had a doctor’s note, but his manager didn’t want to see it. And the manager told him to go home, so he did. [ 15 ] The Appellant said he returned to work on September 17, and [NAME] ([NAME]) told him to go home because he hadn’t called in sick for the five days he was absent from work. He said that on September 19, the employer gave him a settlement offer of $6,500 if he signed the settlement agreement. He said the employer gave him three business days to decide. He didn’t accept the offer. [ 16 ] The Appellant said that the employer decided to punish him for not signing the settlement agreement. He said the employer then issued an ROE that said he was dismissed from his job. [ 17 ] In his notice of appeal, the Appellant said when he did the same thing that everyone else did at work, it was a problem. He said that this was the reason why his supervisor took issues to [NAME]. He said the supervisor picked on him. [ 18 ] At the hearing, the Appellant said his supervisor discriminated against him. He added that the employer wanted him to quit, but he needed to find another job before he could quit. [ 19 ] I find from the Commission’s evidence from the employer and the Appellant’s evidence that the employer dismissed the Appellant because he didn’t report to work for five consecutive days and didn’t call each day to say he would not be at work. [ 20 ] At the hearing, the Appellant testified that after his manager told him he could go home because he didn’t want to do outside work due to illness, he didn’t return to work until September 17. He also confirmed that he didn’t call the employer every day to say that he would not be going to work because he was sick. [ 21 ] The Appellant testified that a coordinator asked him to work outside. He did not say that it was his supervisor. So, I don’t find a link between his claims that his supervisor was discriminating against him and the employer’s decision to dismiss him. [ 22 ] Even if I found that the supervisor was involved in directing the Appellant to work outside, I find from the evidence that the conduct that led the employer to dismiss the Appellant was the Appellant’s failure to report daily his absence from work after September 9 until he returned to work on September 17, 2025. Is the reason for the Appellant’s dismissal misconduct under the law? [ 23 ] The reason for the Appellant’s dismissal is misconduct under the law. [ 24 ] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional. Footnote 3 Misconduct also includes conduct that is so reckless that it is almost wilful. Footnote 4 The Appellant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law. Footnote 5 [ 25 ] There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that. Footnote 6 [ 26 ] The Commission has to prove that the Appellant lost his job because of misconduct. The Commission has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that the Appellant lost his job because of misconduct. Footnote 7 [ 27 ] The law doesn’t say I have to consider how the employer behaved. Footnote 8 Instead, I have to focus on what the Appellant did or failed to do and whether that amounts to misconduct under the Act. Footnote 9 [ 28 ] The Commission says there was misconduct because the Appellant knew the consequence of not reporting his consecutive absences. It says the Appellant was aware of the daily reporting policy. [ 29 ] The Appellant says he wasn’t at work because he was sick, and his employer knew this. He says his supervisor discriminated against him and that’s why he lost his job. [ 30 ] I find that the Commission has proven that there was misconduct, because the Appellant should have known that he could lose his job if he didn’t report his absences from work. [ 31 ] The Appellant testified about what happened before the employer let him go from his job. He said his manager had allowed him to work inside for two days because he was sick. He said after that, another coordinator asked him to work outside. He told the coordinator he was sick, but the coordinator insisted that he had to work outside. [ 32 ] The Appellant said he went to speak to his manager. He told the manager that he had the flu and if he went to work outside, he was going to get worse. The Appellant told the manager he had a doctor’s note that he could give him. He said his manager then told him that there was no work inside. The Appellant said his manager told him that if he could not work outside, he could go home. [ 33 ] The Appellant’s representative asked the Appellant if his manager told him how long he could stay home. The Appellant said he didn’t, but he stayed home until he went back to work on September 17, when the employer told him to go home. He said that on September 19, he got an email with the employer’s settlement offer. [ 34 ] The Appellant sent the Commission a copy of the doctor’s note he got, dated September 4, 2025. Footnote 10 The note says the Appellant had an upper respiratory tract infection that was likely viral. The note doesn’t say anything about the Appellant’s ability to work or how long the Appellant would be sick. [ 35 ] The employer sent the Commission a copy of its attendance policy. Footnote 11 It defines full-day absences as well as what it means to be tardy. In a section about call-in procedures, the policy says that employees are expected to call in to their supervisor before the start of a scheduled shift with the reason for their absence or tardiness and to give the expected duration. It adds that if an employee can’t reach their supervisor, they should leave the supervisor a voicemail message and should maintain daily contact with their supervisor each day they’ll be absent. [ 36 ] The policy also details a point system for absences and tardiness. According to the point system, an employee who accumulates 12 points in a 12-month period will be terminated. [ 37 ] The employer told the Commission that the Appellant had accumulated more than 12 points due to absences and tardiness. It sent the Commission two written warnings that give dates when the Appellant was late and absent. But I find don’t that they show that the Appellant accumulated more than 12 points. Although the two written warnings show that the Appellant accumulated 6.5 and 6 points, respectively, there’s overlap in the dates on the written warnings. So, I give little weight to the employer’s statement about how many points the Appellant accumulated for being absent or late. [ 38 ] The employer’s attendance policy states that, “… in accordance with the Collective Agreement, employment shall be deemed terminated where: 1. an employee has been absent for three (3) consecutive working days without a valid reason …”. The employer told the Commission that this is what section 9.06(d) of the Collective Bargaining Agreement states. [ 39 ] I asked the Appellant if he called his employer each day to say that he would not be at work. The Appellant said he didn’t because this had never happened to him before. He added that the employer knew what had happened to him since the day he left, he was sick. [ 40 ] I asked the Appellant if he was aware of the part of the employer’s attendance policy that says employees have to call their supervisor if they’ll be absent or tardy and maintain daily contact each day they’ll be absent. He said he wasn’t. [ 41 ] I asked the Appellant what he thought he was supposed to do if he was sick. He said that if you left because you weren’t feeling well, and if the employer doesn’t see you for one or two days, the employer would probably call to see if you’re okay or if you’re still sick. He again said that he left work because he was sick, so he didn’t think of calling his manager. [ 42 ] The Appellant said he didn’t know that if he missed work for three consecutive days as stated in his collective agreement, he could lose his job. He confirmed that he was in a unionized job and that he had a copy of the collective agreement and had read it. But he said he didn’t know about losing his job if absent for three consecutive days. [ 43 ] The Appellant testified about being late for work two days around the time of a trip outside Canada to visit his mother. He said that it was in this context that he learned about the accumulation of points for being late and absent. [ 44 ] I asked the Appellant if the employer shared with him any company policies when he started his job. He said he got a company handbook and that was it. [ 45 ] I accept that the Appellant was sick on September 4 when he got the note from his doctor. But the note doesn’t say anything about what this meant for the Appellant’s ability to work. And because the Appellant worked for at least two days before September 9, I’m not satisfied the Appellant’s illness prevented him from working; rather, I find from his testimony that the Appellant didn’t want to work outside, perhaps for the reason that he didn’t want any illness he still had to get worse. [ 46 ] I find that even if the Appellant didn’t want to make his illness worse by working outside, it was reckless to assume that the employer knew that the reason he was away from work for five consecutive days was because he was sick. Again, according to the Appellant’s testimony, his manager knew he had a doctor’s note about his illness, but the Appellant had worked for at least two days anyway. [ 47 ] I don’t find that Appellant’s testimony about what he though he should do if he was sick and could not go to work was reasonable. I don’t find it reasonable that an employee would think it was the employer’s responsibility to confirm whether they were still sick. [ 48 ] I find it likely that the employer’s company handbook would address its expectations of its employees including attendance. In one of the written warnings the employer issued the Appellant, the employer included a quote from its employee handbook. Footnote 12 It states, “The following examples of misconduct may result in discipline up to and including dismissal: flagrant misconduct, violation of the Company’s policies or safety rules … absenteeism and lateness”. Since the Appellant said he got the employer’s company handbook, I find it likely that he knew his employer’s attendance expectations. [ 49 ] I give a lot of weight to the employer’s statement to the Commission about what the Appellant’s collective agreement says concerning absences for three consecutive days without a valid reason. I do so because this is stated in the employer’s written policy. [ 50 ] In both written warnings the Appellant received about his lateness and absences, the employer warned the Appellant that further absences or tardiness would result in discipline up to and including termination of employment. [ 51 ] The Appellant suggested that his employer, through his supervisor, was trying to get him to leave his job. He referred to an incident that happened on August 13, 2025. He said he was the only one who was asked to park his forklift and complete an assigned task when others weren’t asked to do the same. He said his supervisor did this because of his race. [ 52 ] I asked the Appellant why he thought that his employer was discriminating against him based on his race. He said that it was because his co-workers were “different” than him, and the supervisor wanted him to “stand on [his] feet”. [ 53 ] The Appellant’s supervisor reported the incident to the employer, that the Appellant refused to work. The employer sent the Commission a copy of notes related to the incident. The Appellant’s representative observed that the notes are signed by all meeting attendees except the Appellant. So, she said I should give them little weight. [ 54 ] Despite the representative’s submission, I give the notes some weight. I do so because the notes appear to be a formal record of what happened at the meeting. Although the Appellant didn’t sign the notes, the date and time of the meeting is recorded. I note that the Appellant disputes having said what the notes quote him as saying. And the absence of his signature reduces the weight I would otherwise give them. [ 55 ] Unlike the notes, the Appellant did sign the discipline form notifying him of a three-day suspension and final warning related to the August 12, 2025, incident. It includes a summary of what happened at the meeting and what the employer informed the Appellant before he maintained that he would not perform the assigned task. [ 56 ] I acknowledge that the Appellant believes that his supervisor was discriminating against him and tried to get him to leave his job. But I find his conclusion is speculative. I don’t find his testimony that he was the only one asked to perform the task without his forklift and his co-workers were different from him is enough to conclude there was discrimination. More importantly, I don’t find that any conflict the Appellant was having with his supervisor led in any way to the Appellant’s failure to report to work for five consecutive days and his failure to let his employer know that he would not be in. [ 57 ] The Appellant’s representative referred to a Tribunal decision of the General Division. Footnote 13 She said that the Appellant, like the claimant in the case cited, didn’t just walk away from his job; he was told he could go, and he took it literally. She said the Appellant had a doctor’s note showing that he was sick, but the employer didn’t look at it. [ 58 ] I don’t find the case the Appellant’s representative cited is helpful in deciding whether the Appellant lost his job due to his misconduct. The facts of the two cases are very different. In JS , the claimant gave her employer three doctor’s notes saying she would be away from work; the Appellant’s doctor’s note simply said he was sick. In JS , the claimant’s employer said she had abandoned her job; the Appellant’s employer dismissed him. In JS , the claimant wasn’t told that not completing a form would lead the employer to consider that she had abandoned her job; the Appellant knew or should have known that he would lose his job if he went against his employer’s attendance policy. [ 59 ] I find that the Appellant likely knew or should have known that not reporting to work for five consecutive days without calling the employer could result in his dismissal. When suspended in August 2025, he was warned that any further violation of company policy would result in immediate termination of his employment. For this reason, I find that the Appellant’s action is misconduct under the law. So, was the Appellant dismissed from his job because of misconduct? [ 60 ] Based on my findings above, I find that the Appellant was dismissed from his job because of misconduct. Conclusion [ 61 ] The Commission has proven that the Appellant was dismissed from his job because of misconduct. Because of this, the Appellant is disqualified from receiving [NAME] benefits. [ 62 ] This means that the appeal is dismissed. Footnotes Footnote 1 Section 30 of the Employment Insurance Act says that Appellants who lose their job because of misconduct are disqualified from receiving benefits. Return to footnote 1 referrer Footnote 2 See section 30 of the Act. Return to footnote 2 referrer Footnote 3 [NAME]  v  Canada (Attorney General) , 2007  FCA  36. Return to footnote 3 referrer Footnote 4 [NAME]  v  Her Majesty the Queen , A-402-96. Return to footnote 4 referrer Footnote 5 See Attorney General of Canada  v  [NAME] , A-352-94. Return to footnote 5 referrer Footnote 6 [NAME]  v  Canada (Attorney General) , 2007  FCA  36. Return to footnote 6 referrer Footnote 7 See Minister of Employment and Immigration  v  [NAME] , A-369-88. Return to footnote 7 referrer Footnote 8 See section 30 of the Act. Return to footnote 8 referrer Footnote 9 [NAME]  v  Canada (Attorney General) , 2016  FC  1282; Canada (Attorney General)  v  [NAME] , 2007  FCA  107. Return to footnote 9 referrer Footnote 10 See page GD3-28. Return to footnote 10 referrer Footnote 11 See pages GD3-33 to GD3-36. Return to footnote 11 referrer Footnote 12 See page GD3-37. Return to footnote 12 referrer Footnote 13 [NAME].  v  Canada Employment Insurance Commission , 2019  SST  1433. Return to footnote 13 referrer