A former call centre employee at a global retail chain is not entitled to Employment Insurance (EI) benefits after he was fired for “highly problematic behaviours towards customers,” the Social Security Tribunal of Canada Appeal Division has ruled.
It upheld the decision that his termination for gross misconduct was justified. Despite claims of bias and improper handling of evidence, the tribunal found no errors in the original ruling by the General Division.
The tribunal found that the General Division had correctly determined that N. H.’s conduct constituted misconduct under the Employment Insurance Act (EI Act), disqualifying him from receiving EI.
‘Blatant disrespect of customers’
N. H., referred to as “the Claimant” in the tribunal documents, worked for a global retail chain and was terminated after a review of his recent customer interactions. According to the employer’s termination letter, the review revealed “blatant disrespect of customers” and a refusal to adhere to behavioural expectations, leading to the decision to terminate his employment for cause.
Following his dismissal, N. H. applied for EI regular benefits, which were denied by the Canada Employment Insurance Commission (Commission) on the grounds of misconduct. After a request for reconsideration, the Commission upheld its decision, prompting N. H. to appeal to the General Division of the tribunal.
When the General Division also dismissed his appeal, N. H. took his case to the Appeal Division, arguing that the General Division had failed to observe a principle of natural justice and had made errors in evaluating the evidence.
Four main issues on appeal
In his appeal to the Appeal Division, N. H. raised four main issues: potential bias or prejudgment by the General Division, factual errors in the handling of his evidence, improper reliance on his alleged incompetence, and the need for the Appeal Division to correct any errors made. However, the tribunal found no merit in these claims.
The tribunal noted that its role differed from that of the General Division, as it could only intervene if there was an error in the process, jurisdiction, legal application, or factual findings of the General Division. The tribunal concluded that N. H. had not demonstrated any such errors.
Regarding the claim of bias, N. H. argued that the General Division member raised their voice during the hearing and referred to some untrue evidence. However, the tribunal emphasized that the legal standard to prove bias is high, requiring evidence that a reasonably informed person would perceive the decision-maker as unfair. The tribunal found no indication of bias or prejudgment, stating that the General Division had provided both parties a fair opportunity to present their case.
N. H. also argued that the General Division made significant factual errors, particularly concerning an email about a customer call on No. 28, 2023. He claimed the email, written by a new employee, misrepresented the call’s duration and content. However, the tribunal determined that the General Division had appropriately considered this evidence and had reasonably preferred the Commission’s and employer’s evidence over N. H.’s.
Incompetence versus misconduct
Furthermore, N. H. contended that his dismissal was due to incompetence rather than misconduct. The tribunal clarified that misconduct under the EI Act involves wilful or reckless conduct that breaches a duty owed to the employer. It found that the General Division had correctly distinguished between misconduct and poor job performance, determining that N. H.’s behaviour was indeed wilful misconduct, as evidenced by repeated instances of rudeness and disrespect towards customers, culminating in a particularly egregious incident where he told a customer to “shut up.”
The tribunal also addressed the performance documents provided by the employer, which N. H. claimed contained lies and which he had refused to sign. The tribunal noted that while the documents were titled as performance improvement plans, they described the Claimant’s behaviour and attitude, supporting the finding of misconduct rather than incompetence.
For more information, see NH v Canada Employment Insurance Commission, 2024 SST 416 (CanLII).
