Employers commonly receive calls from Employment Insurance (EI) Officers seeking clarification of the information provided by the employer in a Record of Employment (ROE). The clarification or confirmation typically relates to the employee’s first / last day worked, insurable hours, insurable earnings and / or the reason for issuing the ROE (Block 16).
Employers who are asked to speak to their reason for issuing the ROE should pause and consider what, if any, information to share with the EI Officer. Employers should also carefully consider what steps to take upon receipt of correspondence from the EI Officer or the Canada Employment Insurance Commission (Commission).
A recent preliminary ruling in a complaint under the Canada Labour Code held that an employer would not be permitted to assert dismissal for misconduct because, according to the adjudicator, the issue had already been determined in an EI Officer’s decision to award EI benefits. Though troubling for employers, the Alexander v Huron Commodities Inc., 2019 CanLII 11915, ruling is not surprising given the facts in the case.
Huron Commodities terminated Mr. Alexander’s employment in January 2018. The termination documentation did not set out a reason for termination, but, in the ROE, the employer indicated “dismissal” as the reason for issuing the ROE. Mr. Alexander applied for EI benefits.
In March 2018, after two “fact-finding” telephone conversations, the first with Huron (in which Huron stated it dismissed Mr. Alexander “for several things”, one being “missing fuel”, but that it had never looked into nor pursued this issue) and the second with Mr. Alexander, the EI Officer concluded that the employee had not engaged in any misconduct and awarded him EI benefits. In a letter to Huron, the Commission communicated the award of benefits, its determination that the reason for loss of employment did not constitute misconduct, and that if Huron disagreed with the decision, it could make a request for reconsideration. Huron did not take any action to challenge the decision.
However, in the unjust dismissal proceeding, Huron submitted that Mr. Alexander’s misconduct or, alternatively, his inability to adequately perform his duties, was the reason for his dismissal.
The adjudicator applied the three-part test for issue estoppel and concluded that the employer was estopped from arguing that Mr. Alexander was dismissed for cause:
- The question of misconduct before the adjudicator was the same question before the EI Officer and was fundamental to her decision—Mr. Alexander would not have been entitled to EI benefits if his dismissal was for misconduct.
- The EI Officer’s decision was a final, judicial decision—the Officer had authority to decide on EI benefits and on whether dismissal was for misconduct.
- The parties were the same in both instances.
Most importantly, in exercising his discretion to apply issue estoppel, the adjudicator found no basis for concluding that doing so would result in an injustice to the employer: the termination letter did not mention any misconduct; the EI Officer’s notes suggested Huron had neither looked into nor pursued the missing fuel issue, which was the only point that could be considered misconduct; and Huron did not take steps to challenge the Commission’s decision.
When indicating the reason for issuing a ROE, employers should consider not only the impact on the individual’s application for EI benefits, but also the potential implications for the employer in an unjust or wrongful dismissal complaint. This holistic approach should also be taken when drafting the termination documentation.
Employers should be cautious about liberal discussions with EI Officers, since such discussions may have implications on ancillary matters as in Alexander v Huron Commodities Inc. If an EI Officer calls, consider taking down his or her questions and asking for time to gather information and provide an informed response. This approach allows the employer to take time to properly review the matter, and to seek assistance from counsel in assessing the legal implications of proposed responses to those questions. As always, any correspondence relating to EI benefits should not go unattended and should receive prompt attention.