Conduct after alleged misconduct distinct from conduct that might have led to misconduct

Public Law – Social programs – Employment insurance

Applicant was employed by company when its president and CEO angrily shouted at him and pounded his fist on table during meeting. Applicant took position that he would work remotely from home until company investigated and resolved what he considered to be harassment. Company warned applicant he had to physically attend workplace and, when he did not present himself as directed, dismissed him. Applicant’s application for employment insurance (EI) benefits was denied, on reconsideration, that he was disqualified from EI benefits for misconduct. Applicant’s appeal to General Division of Social Security Tribunal (GD) was denied. Applicant’s appeal to Appeal Division of Tribunal (AD) was denied. Applicant applied for judicial review. Application granted. It was clear that GD conducted no analysis of harassment issue raised by applicant, despite acknowledging his stated reasons for not attending office. GD’s view that its role was to focus on conduct of claimant and not employer was problematic. There was important distinction between employer’s conduct after alleged misconduct, for which GD need not question justification for dismissal once misconduct was established, and employer’s conduct that might have led to “misconduct” in first place. Since applicant explained his “misconduct” of refusal to attend workplace as direct result of employer’s actions, reasonable decision required some consideration of employer’s actions to properly assess whether applicant’s conduct was intentional or not. GD erred by simply focusing on post-harassment conduct. GD did not undertake necessary analysis of considering harassment allegations in full context. AD decision in affirming GD decision was unreasonable.

Astolfi v. Canada (Attorney General) (2020), 2020 CarswellNat 68, 2020 FC 30, Ann Marie McDonald J. (F.C.).

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