Sexual Talk at Work Means No Employment Insurance for Fired Flight Attendant
Many people mistakenly believe that if they are terminated and their employment record is marked “M” for dismissal, they are not entitled to employment insurance.
That is not the case. If you have been terminated for any reason, whether it is your fault or not, “M” for dismissal is the only appropriate code for the employer to choose on this government form.
Assuming you have enough insurable hours to your credit, the only reason you would lose your entitlement to employment insurance upon termination is if it was as a result of your own misconduct.
The courts have defined such misconduct as something that is wilful, deliberate or intentional. It can also include misconduct that is so reckless, it is tantamount to wilful.
It is considered misconduct, for example, if the employee knew or ought to have known their conduct could get in the way of carrying out their duties to the employer and that dismissal was a real possibility. You do not have to have wrongful intent for the behaviour to constitute misconduct.
Sheila worked as a flight attendant for an airline company. The airline had a well-circulated policy prohibiting harassment and violence.
The policy defined harassment as engaging in unwanted physical contact, making sexual comments or advances. It also cautioned employees that perpetrators would be subject to disciplinary action appropriate to the severity of the incident, up to and including dismissal.
Given that Sheila was a lead flight attendant and involved in training new employees, she was well aware of the policy. On a very long flight to Australia, Sheila decided to question some of her colleagues about their sexual preferences and disclosed her own. This was done within earshot of passengers.
The conversation included Sheila inviting a colleague to join her in a hot tub and speculating about what sexual acts the colleague preferred. She followed up that conversation with a social media request to that colleague to become “friends.” The colleague complained, Sheila was fired and she applied for employment insurance.
Sheila claimed that she didn’t know, or couldn’t have known, that she could be dismissed for this conduct. The problem was that she deliberately and consciously chose to make those sexual comments at work. She may not have had wrongful intent, but it was a serious mistake that caused her to lose her job. Sheila did not get employment insurance.
You have to do a lot to be deprived of your right to employment insurance. Service Canada will almost always side with the employee unless the behaviour — misconduct — is egregious.
I have found that even if employees are turned down by the initial investigating officer, an appeal up the chain is often successful. An employer has the right to participate in the appeal, but very few spend the time or money to attend.
Whether or not the employee gets employment insurance is no skin off their back. It has long been held that if an employer does not participate in an appeal, the results have no effect on any other legal proceedings. It is, however, dangerous for the employer to attend. They risk having an unfavourable decision thrown in their face later if they participated in the process.
Employers should be cautious about alleging just cause for a termination, or misconduct. Frivolous allegations can exacerbate the damages they may pay.
Employees, meanwhile, should take a lesson from Sheila and never take their private sex life to work with them.
This article was originally published by The Hamilton Spectator.
