Employees who are fired due to their own misconduct are not entitled to receive employment insurance benefits. In most cases, Service Canada will do an investigation to determine eligibility and the records from the investigation, as well as Service Canada’s conclusion, can be very persuasive evidence should the employee commence legal action for wrongful dismissal.  This is especially important in cases where the employer is raising the defence of just cause.

In general, employers should make sure that the person answering Service Canada inquiries is familiar with the file, including the termination letter, letters from counsel and the pleadings so that the employer’s position is consistent.   It is important to remember that all conversations with Service Canada are documented and many employers have answered questions during a Service Canada investigation that contradict their pleadings.

Finally, an employer facing a claim from a former employee should be careful when thinking about participating in an EI eligibility hearings or appeals, as this may result in the just cause defence being res judicata – meaning it has already been subject to judicial determination.

J.P. Zubec