Misconduct

What is considered misconduct according to Employment Insurance?

The EI Commission normally views the following actions as misconduct:

• Insubordination
• Absence without notification
• Absence without permission
• Absence without justification
• Frequent tardiness
• Refusal to carry out certain duties
• Hostile behaviour
• Violence
• Criminal offenses related to the work
• Unlawful union activities
• Refusal to work overtime
• Drug or alcohol abuse

Keep in mind that the alleged misconduct does not necessarily have to occur at work, so long as the action directly affects the conditions of employment.  For example, a truck driver who loses his or her driver’s license for driving under the influence of alcohol will usually be considered to have lost his or her job due to misconduct.

Being dismissed for negligence, incompetence, or unsatisfactory work is not normally misconduct for Employment Insurance purposes.

How can I argue against misconduct?

The burden of proof for misconduct lies on the employer, and on the Employment Insurance Commission.  This means it is up to them to prove beyond a reasonable doubt that you:

• Committed the act deliberately, or so carelessly that it might as well have been deliberate
• Committed an act so serious that you should have foreseen it would result in your dismissal
• Were fired for the act cited, and it was not an excuse for your employer to get rid of you.

In other words, there must be a causal relationship between your actions and the dismissal.  The actions must be the reason for the firing.

What else do I need to know?

• Misconduct is NOT any infraction that causes you to get fired
• For the purposes of E.I., misconduct must be SERIOUS and WILLFUL—i.e. something you do voluntarily or deliberately and would expect to be fired for
• The misconduct must be related to your employment
• Incompetence is not the same as misconduct
• Stealing, drinking at work, or several unexcused absences are generally considered misconduct
• Losing your driver’s license if it is required for the job is generally viewed as misconduct
• In some cases, even though E.I. decides you lost your job due to misconduct, you can later argue that it wasn’t serious enough, or not willful enough, and therefore it is not misconduct

E.I. or the employer has the responsibility of proving that misconduct occurred.  In the cases where the evidence is balanced, the claimant is given the benefit of the doubt.

For more information on Misconduct, click here.