A worker who lost his job because he failed to keep a clean criminal record has lost his appeal for Employment Insurance (EI) benefits.
The Social Security Tribunal of Canada Appeal Division denied J.W., the Applicant, permission to appeal a General Division decision that disqualified him from receiving EI due to misconduct.
The decision upheld the original ruling that found the Applicant had lost his job because of his criminal record.
Background and claims
J.W. sought to overturn the General Division’s decision, arguing that multiple procedural, legal, and factual errors were made, including the application of the wrong legal test to determine misconduct.
The General Division had previously concluded that the Canada Employment Insurance Commission (CEIC) had proven J.W. was disqualified from EI benefits due to misconduct, specifically his failure to maintain a clean criminal record, which was a condition of his employment.
Key findings
The Tribunal found no reasonable chance of success for the appeal. Key points of contention included whether J.W. received a fair hearing, the General Division’s disclosure of documents, potential bias, application of contract law principles, and the relevance of the B.C. Law and Equity Act.
Fair Hearing: The Tribunal rejected J.W.’s claim that he was not given enough time to present his case, noting that the hearing exceeded the scheduled 60 minutes and J.W. himself had stated, “All right. That’s it for my submissions,” during the proceedings.
Document Disclosure: J.W. contended that he did not have access to certain documents referenced in the decision. However, the Tribunal clarified that the hearing file did not include his actual criminal record check but relied on the employer’s statement that he had a criminal record, which J.W. confirmed during his testimony.
Bias Allegation: The Tribunal dismissed claims of bias, asserting that the General Division’s reference to J.W. as a serious risk to vulnerable adults was grounded in evidence from his employer and was pertinent to assessing misconduct under the EI Act.
Contract Law and Law and Equity Act: The Tribunal concluded that it was beyond the General Division’s jurisdiction to apply these principles in the context of EI misconduct. The primary focus remained on whether J.W. had met the employment conditions, specifically maintaining a clear criminal record.
Application of Legal Test for Misconduct: Despite J.W.’s argument that the wrong test was applied, the Tribunal found that the General Division used the correct standard, determining that J.W.’s criminal record impaired his ability to perform his duties and met the threshold for misconduct.
Lessons from this ruling
- Clear Employment Conditions: Ensure that all employment conditions, such as criminal record requirements, are clearly stated in job offers and consistently enforced.
- Documentation and Communication: Maintain thorough documentation and clear communication regarding employment conditions and any changes or issues that arise during employment.
- Procedural Fairness: Provide ample opportunity for employees to present their case during disciplinary proceedings, ensuring transparency and adherence to procedural fairness.
For more information, see JW v Canada Employment Insurance Commission, 2024 SST 109 (CanLII).
