Claimant Disqualified From EI Due To Misconduct

OUTCOME: Dismissed

Citation: Canada Employment Insurance Commission  v  MM , 2026  SST  275 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] [NAME] decision dated October 3, 2025 (GE-25-2606) Tribunal member: [NAME] of hearing: Teleconference Hearing date: January 30, 2026 Hearing participants: Appellant’s representative Respondent Decision date: March 31, 2026 File number: AD-25-686 On this page Decision Overview Issues Analysis Conclusion Decision [ 1 ] The appeal is allowed. The [NAME] made an error of law when it applied the legal test for misconduct. I have given the decision the [NAME] should have given. [ 2 ] The Claimant should have known his conduct could result in being let go. The test for misconduct has been met. The Claimant is disqualified from receiving Employment Insurance ( EI ) benefits. Overview [ 3 ] [RESPONDENT]. is the Claimant and Respondent in this appeal. He applied for EI regular benefits after he lost his job. [ 4 ] The [APPELLANT] employer said they let him go because he didn’t follow a safety absolute. The employer said the Claimant was working at a height of over four feet without being tied off or wearing a harness. The Claimant says he wasn’t given a harness and there was no place to tie off on that truck. [ 5 ] The Canada Employment Insurance Commission (Commission) decided the [APPELLANT] was let go due to his own misconduct. The [APPELLANT] asked the Commission to reconsider but it didn’t change its position. [ 6 ] The [APPELLANT] appealed to the Social Security Tribunal (Tribunal) [NAME]. The [NAME] decided the Commission didn’t prove misconduct in this case. The [NAME] said the [APPELLANT] didn’t know he could get fired for what he did. [ 7 ] The Commission appealed to the Tribunal’s Appeal Division. I have decided the [NAME] made an error. It didn’t apply the full test of misconduct. It didn’t analyze whether the [APPELLANT] knew, or should have known , that his conduct could result in being let go. [ 8 ] I have given the decision the [NAME] should have given. The [APPELLANT] should have known his conduct could result in being let go. The Commission has proven misconduct. The [APPELLANT] is disqualified from receiving EI benefits. Issues [ 9 ] The issues in this appeal are: a) Did the [NAME] make an error of law when it didn’t apply the full legal test for misconduct and analyze whether the [APPELLANT] knew, or should have known, his conduct could result in being let go? b) If so, how should the error be fixed? Analysis [ 10 ] I can intervene (step in) only if the [NAME] made an error. I can only consider certain errors. Footnote 1 Briefly, the errors I can consider are about whether the [NAME]: acted unfairly in some way decided an issue it shouldn’t have, or didn’t decide an issue it should have made an error of law based its decision on an important error about the facts of the case The [NAME] made an error of law when it didn’t apply the full legal test for misconduct and analyze whether the Claimant knew, or should have known, his conduct could result in being let go [ 11 ] The law says that you can’t get EI benefits if you lose your job because of misconduct. Footnote 2 The test for misconduct isn’t contained in the Employment Insurance Act ( EI Act) . So, the [NAME] had to look at what case law says. The [NAME] outlined the test for misconduct. Footnote 3 I will also explain the test here. [ 12 ] Case law says there are four parts to the misconduct test. Footnote 4 A claimant must have done something wilful, conscious or deliberate. Footnote 5 But no wrongful intent is required. Footnote 6 The conduct must have been the reason the person was let go. The conduct must have interfered with the person’s ability to carry out their duties owed to the employer. Finally, it must be decided if the claimant knew, or should have known, there was a real possibility of being let go because of the conduct. Footnote 7 [ 13 ] The Claimant doesn’t dispute why he was let go. He agrees he climbed on top of a truck that was over four feet tall and swept away debris. The employer says the Claimant didn’t follow safe work practices and was let go because of that. The [APPELLANT] agrees the reason he was let go was because he climbed on top of the truck. [ 14 ] The issue in this case is about whether the [NAME] applied the full test it cited. Specifically, whether it analyzed if the Claimant should have known he could have been let go because of his conduct. [ 15 ] The Federal Court of Appeal ( FCA ) explained in [NAME] what it means to fail in the duties owed to an employer. Footnote 8 The FCA affirmed in [APPELLANT] that misconduct exists when a claimant knew or should have known that their conduct would interfere with their ability to carry out duties owed to their employer and that being let go was a real possibility. Footnote 9 [ 16 ] The [NAME] didn’t meaningfully address the employer’s orientation materials that included safety policies. Footnote 10 The [NAME] stated the correct test for misconduct, but it never analyzed if the Claimant should have known that being let go was a real possibility. It only looked at whether the [APPELLANT] knew. Footnote 11 The question of whether the Claimant should have known he could be let go is an essential part of the test for misconduct. This is an error of law. [ 17 ] The Claimant also thought the [NAME] made a mistake in its decision. He says there is no requirement for a harness or to tie off on other machines. He said he gets into vehicles that are higher than four feet. I understand what the [APPELLANT] is saying. But the issuing isn’t getting into a vehicle. The issue here is that he was working on top of one of the machines at a height of over four feet. Footnote 12 Also, I don’t have to consider other errors in the [NAME]’s decision because I have found an error. Remedy [ 18 ] Since I have found an error, there are two main ways I can remedy (fix) it. I can make the decision the [NAME] should have made. I can also send the case back to the [NAME] if I don’t feel the hearing was fair or there isn’t enough information to make a decision. Footnote 13 [ 19 ] The Commission and the Claimant agreed that if I found a mistake in the [NAME]’s decision, I should make the decision it should have made. There is no suggestion by either party that they didn’t present all of their evidence to the [NAME]. [ 20 ] I agree. This means I can give the decision that the [NAME] should have given. That includes deciding whether the [APPELLANT] is disqualified from EI benefits due to misconduct. There is misconduct under the Employment Insurance Act [ 21 ] I find the Commission has proven there was misconduct for the reasons that follow. This means the Claimant is disqualified from receiving EI benefits. I explained the test for misconduct above. I will go through each element of the misconduct test below. The conduct that led to the [APPELLANT] losing his job was from the incident on February 4, 2025 [ 22 ] On February 4, 2025, the Claimant didn’t wait for a vacuum truck to be available and went on top of the sand truck to remove debris. The Claimant was working at a height of more than four feet. He didn’t have a harness on and wasn’t tied off. The Claimant doesn’t dispute this occurred. Footnote 14 [ 23 ] I’m adopting the [NAME]’s findings on this. Footnote 15 The conduct was wilful [ 24 ] The [APPELLANT] hasn’t denied that he meant to do what he did. The [NAME] found the conduct to be wilful and I’m adopting their findings on this issue. Footnote 16 This doesn’t mean the Claimant had an intention to do something wrong. It only means he intended to climb on top of the truck to carry out work. The conduct interfered with the [APPELLANT] ability to carry out his duties to his employer [ 25 ] The Federal Court has clarified, “this does not mean only the ability to perform the tasks of the particular job, but is the broader duty owed to the employer to be able to report for work by complying with the policies and rules in the workplace.” Footnote 17 [ 26 ] The employer says, and the Claimant has agreed, there are safety absolutes at work. Not complying with the safety absolutes interferes with the [APPELLANT] ability to carry out his duties to his employer. The Claimant should have known there was a real possibility of being let go because of his conduct [ 27 ] I accept that the Claimant may not have directly known there was a real possibility that he could be let go. Footnote 18 I’m not considering whether the Claimant was wrongfully dismissed or the reasonableness of the employer’s policies. That is for another forum. Footnote 19 I have to decide objectively if the [APPELLANT] should have known there was a real possibility he could be let go. Footnote 20 [ 28 ] The legal test doesn’t require that the Claimant have actual knowledge that he could have been dismissed. In this case, the Claimant knew that breaking the employer’s safety absolute policy could lead to discipline. I find the Claimant should have known being let go was a real possibility. I make this finding for the reasons that follow. The [APPELLANT] knew his employer’s policy [ 29 ] First, the employer had a policy that employees couldn’t work at a height of over four feet without a safety harness. Footnote 21 The [APPELLANT] testified to the [NAME] that he knew he needed a harness when working at a height of over four feet. Footnote 22 Shortcuts and failing to follow safe work practices would result in disciplinary action [ 30 ] Second, as part of the Claimant’s orientation it was clear that shortcuts and failing to follow safe work practices and procedures would result in disciplinary action. Footnote 23 The employer told the Commission that the usual practice would have been to wait for the vacuum truck to remove the remaining sand on top of the truck. Footnote 24 The [APPELLANT] acknowledged this was the usual practice during the [NAME] hearing. Footnote 25 The employer said the [APPELLANT] should have waited or asked his supervisor what should have been done. [ 31 ] As part of the orientation quiz, the [APPELLANT] selected an answer about what to do if asked to perform unsafe or uncomfortable work. He chose the option stating that you should exercise your right to refuse unsafe work. Footnote 26 The [APPELLANT] knew the employer had non-negotiable safety rules [ 32 ] Third, as part of the Claimant’s orientation quiz, he selected that he understood his employer’s “safety absolutes”. Footnote 27 A safety absolute is a non-negotiable safety rule. The [APPELLANT] testified at the [NAME] hearing that safety absolutes meant there was a zero-tolerance policy. Footnote 28 [ 33 ] The employer specified that fall protection, energy isolation, excavation and trenching, and confined spaces were the safety absolutes. In this case, the safety absolute breached was “fall protection”. The [APPELLANT] climbed on top of a truck that was over four feet high without taking any fall protection precautions. The [APPELLANT] knew he had violated his employer’s policy [ 34 ] Fourth, the [APPELLANT] told the Commission he agreed he had committed a safety violation. Footnote 29 He also said this during his hearing with the [NAME]. Footnote 30 The [APPELLANT] also agreed with his employer’s reason for letting him go. Footnote 31 Specifically, that he was standing on top of a truck without regard to the employer’s safety policy. The employer noted this was a safety absolute so it had to be followed. The [APPELLANT] should have known there was a real possibility he could be let go [ 35 ] Taken together, the factors above indicate the [APPELLANT] should have known there was a real possibility in being let go. It’s important to understand that the level of discipline an employer chooses isn’t a relevant consideration. The employer had policies in place and the [APPELLANT] acknowledged them. The [APPELLANT] knew the safety absolutes. He knew that discipline would result from failing to observe a safety absolute. The Claimant took a shortcut and climbed on top of a truck with no safety precautions. [ 36 ] Case law shows that misconduct exists if someone knew, or should have known, their actions would have consequences. The Claimant knew discipline would result from a breach of one of the safety absolutes. The employer has a zero-tolerance policy, which the Claimant acknowledges. My role isn’t to look at the employer’s behaviour or policies and determine whether it was right to let the Claimant go. Instead, I have to focus on what the Claimant did or didn’t do and whether that amounts to misconduct under the EI Act. [ 37 ] I understand the Claimant says he wasn’t provided with a harness. But looking at the whole situation, the evidence suggests it wasn’t the usual practice to go on top of the truck. The usual practice was to use a vacuum truck to remove the debris. I acknowledge there wasn’t a harness or a tie-off. But that doesn’t make what the Claimant did acceptable. [ 38 ] For the misconduct test, I’m not looking at what the reasonable alternatives are for the Claimant. Instead, I’m looking at whether he did or didn’t do the alleged conduct. Then I’m applying the law to the facts of the case. [ 39 ] In this case, the Claimant says he did the alleged conduct. I understand the Claimant had his reasons about why he climbed on top of the truck. Unfortunately, his reasons don’t excuse the conduct. The issue isn’t that he didn’t have a harness or a place to tie off. The real issue is that he shouldn’t have been working on top of the sand truck. [ 40 ] I’m uncertain if the Claimant is arguing that his employer should have provided him with a harness. During the [NAME] hearing, the Claimant argued there wasn’t a harness so he was wrongfully dismissed. Footnote 32 But the law is clear that I don’t have to consider how the employer behaved. Footnote 33 Instead, I have to focus on what the [APPELLANT] did or didn’t do and whether that amounts to misconduct under the Act. Footnote 34 In this case, all four parts of the test have been met. So, there is misconduct under the EI Act. Conclusion [ 41 ] The appeal is allowed. The [NAME] made an error of law when it applied the legal test for misconduct. I have given the decision the [NAME] should have given. [ 42 ] The [APPELLANT] should have known his conduct could result in being let go. The test for misconduct has been met. The Claimant is disqualified from receiving EI benefits. Footnotes Footnote 1 See section 58(1) of the Department of Employment and Social Development Act ( [NAME]). Return to footnote 1 referrer Footnote 2 See sections 30 and 31 of the Employment Insurance Act ( EI Act). Return to footnote 2 referrer Footnote 3 See the [NAME] decision at paragraphs 12 to 14. Return to footnote 3 referrer Footnote 4 [NAME]  v  Canada ([NAME] [NAME]) , 2025  FCA  55 at paragraphs 26 to 28. Return to footnote 4 referrer Footnote 5 [NAME]  v  Canada ([NAME] [NAME]) , 2007  FCA  36. Return to footnote 5 referrer Footnote 6 [NAME] [NAME] of Canada  v  [NAME] , A-352-94. Return to footnote 6 referrer Footnote 7 [NAME]  v  Canada ([NAME] [NAME]) , 2007  FCA  36. Return to footnote 7 referrer Footnote 8 [NAME]  v  Canada ([NAME] [NAME]) , 2007  FCA  36. Return to footnote 8 referrer Footnote 9 [NAME]  v  Canada ([NAME] [NAME]) , 2019  FCA  22 at paragraph 21. Return to footnote 9 referrer Footnote 10 See the [NAME] decision at paragraph 19. Return to footnote 10 referrer Footnote 11 See the [NAME] decision at paragraph 18. Return to footnote 11 referrer Footnote 12 See GD3-40 a photo of the Claimant on top of the truck in the Commission’s Reconsideration File. Return to footnote 12 referrer Footnote 13 Section 59(1) of the [NAME] me to fix the [NAME]’s errors in this way. Return to footnote 13 referrer Footnote 14 See GD3-38 of the Commission’s Reconsideration File. Return to footnote 14 referrer Footnote 15 See the [NAME] decision at paragraphs 15 and 16. Return to footnote 15 referrer Footnote 16 See the [NAME] decision at paragraph 17. Return to footnote 16 referrer Footnote 17 [NAME]  v  Canada ([NAME] [NAME]) , 2024  FC  321 at paragraph 83. See also Canada ([NAME] [NAME])  v  [NAME] , 2004  FCA  219 at paragraph 3. Return to footnote 17 referrer Footnote 18 Listen to the Appeal Division hearing recording at 01:03:40. Return to footnote 18 referrer Footnote 19 [NAME]  v  Canada ([NAME] [NAME]) , 2024  FCA  7 at paragraph 14. Return to footnote 19 referrer Footnote 20 [NAME]  v  Canada ([NAME] [NAME]) , 2025  FCA  55 at paragraph 27. Return to footnote 20 referrer Footnote 21 See GD3-22 and GD3-46, the employer’s statements to the Commission about their safety policy. See also GD3-38, the employer’s disciplinary action form about the Claimant’s conduct. Return to footnote 21 referrer Footnote 22 Listen to the [NAME] hearing recording at 00:08:57; 00:10:57 and 00:19:50. Return to footnote 22 referrer Footnote 23 See GD3-31 the Health, Safety and Environmental orientation checklist that the [APPELLANT] initialled. Return to footnote 23 referrer Footnote 24 See GD3-46 of the Commission’s Reconsideration File. Return to footnote 24 referrer Footnote 25 Listen to the [NAME] hearing recording at 00:23:27. Return to footnote 25 referrer Footnote 26 See GD3-32 of the Commission’s Reconsideration File. Return to footnote 26 referrer Footnote 27 See GD3-32 of the Commission’s Reconsideration File. Return to footnote 27 referrer Footnote 28 Listen to the [NAME] hearing recording at 00:20:39. Return to footnote 28 referrer Footnote 29 See GD3-26 of the Commission’s Reconsideration File. Return to footnote 29 referrer Footnote 30 Listen to the [NAME] hearing recording at 00:19:47. Return to footnote 30 referrer Footnote 31 See GD3-38 of the Commission’s Reconsideration File. Return to footnote 31 referrer Footnote 32 Listen to the [NAME] hearing recording at 00:13:53. Return to footnote 32 referrer Footnote 33 See section 30 of the Act. See also [NAME]  v  Canada ([NAME] [NAME]) , 2023  FC  1764 at paragraph 26. This decision was upheld by the Federal Court of Appeal in [NAME]  v  Canada ([NAME] [NAME]) , 2025  FCA  55. Return to footnote 33 referrer Footnote 34 [NAME]  v  Canada ([NAME] [NAME]) , 2016  FC  1282; Canada ([NAME] [NAME])  v  [NAME] , 2007  FCA  107. Return to footnote 34 referrer