After investigating the complaint, the EI officer concluded that the test for misconduct was not satisfied: that test requires proof that the employee’s actions were wilful or of such negligence that he ought to have known that his actions would impair the performance of duty owed to the employer.
This is what is signified by the use of Code M in the ROE. This is a high test to meet: here, the employer was unable to prove that the conduct regarding the missing fuel was willful or that Mr. Alexander knew that his actions would impair the performance of duty owed. Consequently, the EI officer concluded that there was no misconduct.
The employer accepted this conclusion and took no additional steps to provide additional information or to request a reconsideration.
The matter moved next to a hearing. However, prior to the commencement of the hearing, the employee argued that the issue of whether he was dismissed for misconduct had already been determined. The legal argument was for a preliminary ruling that the adjudicator of the hearing should apply the ‘doctrine of issue estoppel’ regarding the question of misconduct based on the EI officer’s decision. If that doctrine applied, then the employer would be prompted from arguing that Mr. Alexander was dismissed for misconduct. (The parties agreed that the employer’s second argument, that the dismissal was based on the employee’s incompetent performance of his duties, was not the subject matter of the EI officer’s decision and so issue estoppel would only apply to prevent a finding of dismissal based on misconduct.)
Issue estoppel is a general legal concept based on fairness and is relied upon in circumstances where two parties have already litigated an issue. Generally, a judicial decision on an issue should finally resolve that issue between the parties, unless that decision is reversed on appeal. The case law sets out three requirements for the application of issue estoppel:
1. the same factual & legal question has been decided;
2. the judicial decision relied upon for the estoppel was final; and
3. the parties were the same in both proceedings. Applying the test to the facts of this case,
the adjudicator held that:
1. The question of the employee’s misconduct before the adjudicator was the same question before the EI officer.
2. The EI officer’s decision was a final judicial decision because the EI officer had authority to decide on EI benefits and to determine whether the dismissal was
for misconduct; and
3. The parties were the same.
The adjudicator ruled that while issue estopped was met and could be applied, he retained discretion, whether he should apply it in this case. Issue estoppel is
intended to promote justice and, if its application would promote an injustice, he could choose not to apply it.
The adjudicator considered two factors when exercising his discretion. First, did the employer challenge the EI officer’s decision? It had not. Second, what was
the expertise of the EI officer and did that experience merit judicial notice?
The adjudicator concluded that the EI officer has considerable experience and expertise in deciding whether a dismissal was for misconduct. Based on these two
factors, and the facts that the termination letter did not mention any misconduct, and the employer did not investigate or pursue the only potential misconduct
issue of the alleged missing fuel, the adjudicator found there was no basis to conclude that applying issue estoppel would result in an injustice.
As a result of the adjudicator’s decision to apply issue estoppel, the employer could not defend the unjust dismissal complaint on the basis that Mr. Alexander was terminated for misconduct. The adjudicator retained jurisdiction to decide the employer’ alternative defence that the employee was dismissed due to his inability to adequately perform his duties.
