Employee knew that termination was possibility if she continued to consume alcohol on reserve

Public law - Social programs - Employment insurance

Misconduct. Canada Employment Insurance Commission denied employee’s application for employment insurance (EI) benefits on ground that she lost employment due to misconduct. General Division (GD) of Social Security Tribunal dismissed employee’s appeal. Appeal Division (AD) of Social Security Tribunal allowed employee’s appeal on grounds that GD did not have regard to employer’s progressive discipline policy or how employer treated other employees who engaged in similar conduct, and failed to find whether employee had received prior warning. AD agreed that employee was dismissed for misconduct because she consumed alcohol on dry reserve contrary to terms of employment, and held that it was not reasonable for employee to rely on progressive discipline policy or treatment of other employees. Employee brought application for judicial review. Application dismissed. AD was entitled to decide factual questions and make decision GD should have made. AD did not err in determining that employee knew that termination was possibility if she continued to consume alcohol on reserve, and that her behaviour amounted to misconduct. It was reasonable for AD to conclude that not drinking alcohol on reserve was term of employment and to infer that employee was aware of employer's concern. AD erred when it considered fact that employee knew of employer’s decision to summarily terminate her husband as basis for finding that employee could not rely on employer’s progressive discipline policy or treatment of other employees but error was not determinative.

Nelson v. Canada (Attorney General) (2019), 2019 CarswellNat 4171, 2019 FCA 222, Wyman W. Webb J.A., D.G. Near J.A., and Yves de Montigny J.A. (F.C.A.).

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