A worker who lost his job after he failed to return to work following a bereavement leave is not entitled to receive Employment Insurance (EI) benefits, the Social Security Tribunal of Canada’s Appeal Division has ruled.
The worker, F.M., sought to overturn a General Division decision which found that the Canada Employment Insurance Commission had proven he lost his employment because of misconduct. The General Division concluded that F.M. did not return to work after his bereavement leave and was therefore disqualified from receiving benefits.
Denying any misconduct, F.M. argued that his employer wrongfully dismissed him while he was on bereavement leave. He contended that it is unlawful to terminate an employee during such leave and claimed he was negotiating an extension when dismissed. He asserted that the General Division made legal and factual errors by applying the wrong legal test and by overlooking these facts.
Before an appeal can proceed, the Appeal Division must determine whether there is a reasonable chance of success. Tribunal member Janet Lew stated, “I am not satisfied that the appeal has a reasonable chance of success. Therefore, I am not giving permission to the Claimant to move ahead with the appeal.”
The Appeal Division considered two main issues:
- Whether there was an arguable case that the General Division applied the wrong legal test in determining misconduct.
- Whether the General Division based its decision on an important factual error regarding F.M.’s attempts to negotiate an extension of his bereavement leave.
Wrong legal test?
On the first issue, the Appeal Division concluded that F.M. did not have an arguable case that the General Division made a legal error. F.M. argued that his employer’s dismissal violated provincial labour laws prohibiting termination during bereavement leave and that employers can grant additional leave time. However, the Appeal Division noted that the Social Security Tribunal does not have the authority to consider wrongful dismissal when assessing misconduct.
“It is well established in law that the General Division does not have any authority to consider whether the Claimant’s employer had wrongfully dismissed him, when it comes to assessing whether there was misconduct,” Lew wrote, citing the Federal Court of Appeal decision in Sullivan. The court held that the Tribunal is “a forum to determine entitlement to Social Security benefits, not a forum to adjudicate allegations of wrongful dismissal” and “the law is that the Social Security Tribunal cannot delve into whether the dismissal was proper.”
Lew added, “In other words, the issue of a claimant’s wrongful dismissal does not factor into the consideration of whether there was misconduct.”
Negotiating additional bereavement leave
Regarding the second issue, the Appeal Division found that F.M. did not have an arguable case that the General Division made a factual error. F.M. claimed he had been negotiating an extension of his bereavement leave and could not have anticipated his dismissal. He argued that if he was unaware of potential consequences for remaining off work, he may not have committed misconduct.
The Appeal Division reviewed the evidence and noted that the General Division found no communications from F.M. to his employer between March 19 and March 25, 2024. The employer contacted F.M. on March 25 and again on March 26, requesting confirmation of his return to work. On March 26, his supervisor wrote, stating he needed to know that day whether F.M. planned to return; otherwise, the position would be filled and a termination assessment issued for his Record of Employment.
“The evidence does not support the Claimant’s assertions that he was negotiating with his employer for an extension of his bereavement leave,” Lew stated. “The Claimant told his employer that he would let him know what was happening, but none of the text exchanges showed that the Claimant gave his employer an approximate date when he would be returning to work, or that he asked for an extension after three days. He was not responsive to his employer.”
The Appeal Division concluded that the General Division addressed the evidence and was aware of the communications between F.M. and his employer when assessing misconduct. “I am not satisfied that there is an arguable case that the General Division overlooked any of the evidence,” Lew wrote.
F.M. also sought a reassessment of the evidence, asking the Appeal Division to find that he was justified in remaining off work and had not committed misconduct. However, the Appeal Division noted that its role is limited to determining whether the appeal has a reasonable chance of success, not to reassess evidence to reach a different conclusion.
“The Appeal Division does not reassess the evidence that was before the General Division to reach a different conclusion,” Lew stated. “The role of the Appeal Division in an application for leave to appeal is limited to determining whether the appeal has a reasonable chance of success.”
For more information, see FM v Canada Employment Insurance Commission, 2024 SST 1228 (CanLII).
