A worker who used her employer’s messaging platform to make disrespectful comments about the company’s owner and allegedly encourage time theft lost her job due to “misconduct” and is not entitled to receive employment insurance (EI) benefits, the Social Security Tribunal of Canada has ruled.
The tribunal found these statements, which were visible on a shared company computer, violated workplace trust and contributed to her termination. While the worker — A.M. — claimed her comments were part of private exchanges with a co-worker and were not intended for employer scrutiny, the tribunal found that the employer’s discovery of the messages was inadvertent and permissible.
The case initially came to the tribunal following a decision by the Canada Employment Insurance Commission, which had ruled in favor of A.M., allowing her EI benefits. However, the unnamed employer appealed, contesting that A.M.’s dismissal was grounded in misconduct, thus barring her eligibility for EI support. This appeal led to a protracted hearing process, with A.M. disputing the employer’s claims of insubordination and privacy invasion.
Was it ‘misconduct’ under the law?
In its analysis, the tribunal weighed whether the behavior in question constituted “misconduct” as defined under employment law. The tribunal ultimately concluded that the employer met the burden of proof, demonstrating that A.M.’s decision to make disparaging remarks on the platform represented reckless behavior.
The ruling affirmed that A.M. “should have known” her actions could jeopardize her employment, noting, “the Claimant’s decision to make the kind of comments about the owner that she did on a tool that her employer subscribed to for employee use was reckless.”
Private messages?
A.M. countered that her comments were part of private conversations and argued that the employer’s access to her messages infringed on her privacy rights. She presented evidence of a subsequent email from the messaging platform, suggesting unauthorized access to her account by the employer.
However, the tribunal dismissed these claims, finding the employer’s explanation — that the discovery occurred on a shared warehouse computer — credible and legally admissible. It noted that privacy concerns regarding employer oversight would be more appropriately addressed in her separate wrongful dismissal claim with the Ministry of Labour.
Time theft and working ‘from the pool’
Further arguments from A.M. related to time theft were also examined. While the employer highlighted messages where A.M. purportedly instructed co-workers to take breaks, the tribunal found insufficient evidence to substantiate these claims. A.M. defended her actions, explaining that as project coordinator, she had discretion in scheduling and coordinating tasks and that her behavior was in line with her established role and authority.
Though the tribunal did not find clear evidence of time theft, it ruled that the derogatory and insubordinate comments alone breached workplace conduct standards. Citing messages A.M. made about working “from the pool” and her disparaging remarks about the owner, the tribunal concluded these messages would erode trust between the employee and employer, constituting grounds for dismissal.
For more information, see X v Canada Employment Insurance Commission and AM, 2024 SST 1084 (CanLII).
