An apartment superintendent who was fired after she refused to deal with a contractor who had sexually harassed her did not lose her job due to misconduct and is eligible to receive Employment Insurance (EI) benefits.
The Social Security Tribunal of Canada Appeal Division overturned an earlier decision, by the General Division, that denied her benefits.
Her employer terminated her because she refused to give the contractor access to the building. It also said it gave her a final warning after receiving tenant complaints about the way she did her job.
But the claimant, B.G., said the contractor already had a key to the building and she didn’t want to deal with him in person because of his past behaviour towards her.
The Canada Employment Insurance Commission initially ruled this as misconduct under the EI Act, leading to the denial of B.G.’s benefits. However, both B.G. and the Commission later agreed that this assessment was incorrect, stating, “the General Division made an error in its decision.”
The Appeal Division echoed this sentiment, noting the General Division’s disregard for critical evidence presented by B.G., particularly concerning her reasons for not providing the contractor access.
The Appeal Division’s decision highlighted that, “The General Division set out the correct test for misconduct,” but failed to adequately consider B.G.’s evidence, rendering its decision flawed. The ruling emphasized, “One of the ways the General Division makes a serious factual error is to base its decision on a finding of fact it made by ignoring evidence.”
As a result of the tribunal’s findings, the Appeal Division corrected the prior error, stating, “I am allowing the Claimant’s appeal and making the decision the General Division should have made.”
Consequently, B.G. is no longer considered to have lost her job due to misconduct, rendering her eligible for EI benefits.
“Her evidence explaining why she didn’t give the contractor access to the building shows she didn’t know and should not have known she could lose her job for that reason, it said.
For more information, see BG v Canada Employment Insurance Commission, 2023 SST 1773 (CanLII).
