EI Benefits Denied Due to Misconduct

Citation: DM  v  Canada Employment Insurance Commission , 2026  SST  50 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: General Division decision dated January 5, 2026 (GE-25-3405) Tribunal member: [NAME] Decision date: January 23, 2026 File number: AD-26-11 On this page Decision Overview Issue Preliminary observations Analysis Decision [ 1 ] Leave (permission) to appeal is refused. The appeal will not proceed. Overview [ 2 ] The Applicant (Claimant) lost his job. The employer said that he was let go because he didn’t show up to work and didn’t call for five days in a row. It said this went against its policy. The Claimant argued that he didn’t go to work because he was sick and his manager had told him he could go home. He says he didn’t have issues at work until he got a new supervisor. [ 3 ] The Respondent (Commission) decided that the Claimant lost his job because of misconduct. Because of this, the Commission decided that the Claimant is disqualified from receiving EI benefits. After an unsuccessful reconsideration, the Claimant appealed to the General Division of the Tribunal. [ 4 ] The General Division found that the Claimant 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. It found that the Claimant knew or should have known that he could lose his job if he did not report his absences from work, given a previous warning, and that this was the reason why he lost his job. The General Division concluded that the Claimant lost his job because of his own misconduct. [ 5 ] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that he was sent home because he was sick. This is the reason why he did not report sick. He had never done this before. The Claimant puts forward that the employer never checked on him. The Claimant requests expedited processing of his application because he needs the income to cover his living expenses. [ 6 ] I must decide whether the Claimant raised some reviewable error of the General Division upon which the appeal might succeed. [ 7 ] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success. Issue [ 8 ] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? Preliminary observations [ 9 ] In deciding whether to give permission to appeal, I must look at the evidence that was before the General Division. The Appeal Division doesn’t accept new evidence—except in rare circumstances that don’t apply in this case. Footnote 1 Analysis [ 10 ] The law specifies the only grounds of appeal of a General Division decision. Footnote 2 These reviewable errors are that:

1. The General Division hearing process was not fair in some way.

2. The General Division did not decide on an issue that it should have decided. Or, it decided something it did not have the power to decide.

3. The General Division based its decision on an important error of fact.

4. The General Division made an error of law when making its decision. [ 11 ] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed. [ 12 ] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? [ 13 ] The Claimant submits that he was sent home because he was sick. This is the reason why he did not report sick. He had never done this before. The Claimant submits that the employer never checked on him. [ 14 ] The General Division had to decide whether the Claimant lost his job because of misconduct. [ 15 ] The notion of misconduct does not imply that the breach of conduct needs to be the result of wrongful intent; it is enough that the misconduct be conscious, deliberate, or intentional. In other words, to be misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that you could say the person wilfully disregarded the effects their actions would have on their performance. [ 16 ] The General Division’s role is not to rule on the severity of the employer’s penalty or to determine whether the employer was guilty of misconduct by dismissing the Claimant in such a way that his dismissal was unjustified. Its role is to decide whether the Claimant lost his job because of his misconduct as defined by the Employment Insurance Act ( EI Act). [ 17 ] Before the General Division, the Claimant 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 told him to go home, so he did. He also confirmed that he did not call the employer every day to say that he would not be going to work because he was sick. He was absent from work after September 9 until he returned to work on September 17, 2025. When he returned to work, he was not allowed to work. [ 18 ] The General Division found that the Claimant 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. It found that the Claimant knew or should have known that he could lose his job if he did not report to work or call-in his absences from work, and that this was the reason why he lost his job. The General Division concluded that the Claimant lost his job because of his own misconduct. [ 19 ] The General Division found that the employer’s Collective Bargaining Agreement mentioned that an employee would have their employment terminated if they were absent from work for three (3) consecutive days without a valid reason. [ 20 ] As determined by the General Division, the Claimant’s September 4, 2025, medical note does not say anything about the Claimant’s ability to work or how long he would need to recover. Footnote 3 The Claimant did in fact go to work after September 4, 2025, demonstrating an ability to work. The medical note was also not in conformity with the employer’s Attendance Policy. Footnote 4 The Claimant therefore missed five consecutive days without a valid reason, according to the employer's policy. [ 21 ] Furthermore, the General Division determined that the Claimant had an obligation under the Attendance Policy to maintain daily contact with his supervisor each day he was absent. Footnote 5 He did not. [ 22 ] The General Division found that the Claimant 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 had been warned that any further violation of company policy would result in immediate termination of his employment. The General Division also found the Claimant’s was dismissed for that reason, and not because of discrimination. [ 23 ] It is well established that a claimant’s failure to call their employer to notify it of their absence, or an unauthorized absence from work, is misconduct under the EI Act. Footnote 6 This is especially true when required by employer policy. Footnote 7 [ 24 ] I am not satisfied that there is arguably some reviewable error upon which the appeal might succeed. The General Division decision is compatible with the evidence on file and is consistent with the relevant legislative provisions as interpreted in the case law. [ 25 ] After reviewing the appeal file and the General Division’s decision as well as considering the Claimant’s arguments in support of his request for leave to appeal, I find that the appeal has no reasonable chance of success. The Claimant has not set out a reason, which falls into the above-enumerated grounds of appeal that could possibly lead to the reversal of the disputed decision. Footnotes Footnote 1 [NAME]  v  Canada (Attorney General) , 2022  FCA  157. Return to footnote 1 referrer Footnote 2 Section 58(1) of the Department of Employment and Social Development Act . Return to footnote 2 referrer Footnote 3 GD3-28. Return to footnote 3 referrer Footnote 4 GD3-35: The note is missing the date the physician estimates the employee will be able to return to work. Return to footnote 4 referrer Footnote 5 GD3-33. Return to footnote 5 referrer Footnote 6 Umpires have also consistently held that the failure to call an employer to notify it of an absence is misconduct under the Employment Insurance Act (CUB 18712, 18006, 17984, 26713, 32458, and 57141, 66436). See also [NAME]  v  Canada (Attorney General) , 2005  FCA  248 for unauthorized absences. Return to footnote 6 referrer Footnote 7 See L. G  v.  Canada Employment Insurance Commission , 2019  SST  1351. Return to footnote 7 referrer