Does Record of Employment affect EI claim?

QUESTION: About 6 months ago I got a newly-promoted boss. She decided she was going to prove her untried management skills to the company brass by managing me out of a job. Recently I was terminated and was told that it was not for just cause. They told me that instead of putting “dismissal” on my Employment Record, they were going to put “shortage of work” so that I would be eligible for Employment Insurance. They acted like they were doing me a favour. Were they?

I would like to ask for more money than they offered me in the severance package but I am afraid that if I do then they would change what they put on the Employment Record.

ANSWER: If your employment lawyer says that the package is not enough, challenge it. Let them do what they want with the Employment Record. It simply doesn’t matter.

Your question hits on the most common misunderstanding about Employment Insurance. Repeatedly, I find that employees and employers have the misconception that if somebody is “dismissed”, they are not entitled to Employment Insurance. If an employer ends the employment relationship, whether they put “dismissed” or “shortage of work” on the Employment Record, the employee will get Employment Insurance unless they were guilty of willful misconduct. You will only be disqualified from Employment Insurance entitlement if you did something intentionally that was serious in nature. No matter what the employer alleges you have done, if they cannot prove that you did it intentionally, you are going to get Employment Insurance.

The government itself is partly responsible for this confusion. Employers can put either reason on the Employment Record. Both options are listed on the back of the form. It would make more sense if the options were either “dismissed” or “dismissed as a result of willful misconduct”.  Dismissed just means the employer terminated the relationship, it does not mean it was your fault. But most people take it that way.

As it is, the word dismissed alone implies to many people that they are not going to get Employment Insurance.

Even if what your employer put on the Employment Record did make a difference, they would look rather silly if they issued one Employment Record saying shortage of work and then another saying that you were dismissed. An Employment Record is a statutory declaration and misrepresenting the truth on this signed form is against the law. Employers who mistakenly think they can use their ability to fill out the form as they like as a way to keep the employee from challenging a severance package can find themselves in hot water.

If it could be proven in court that an employer actually threatened to change the Employment Record if an employee challenged their severance package, the courts would react strongly. Even though the threat may have been based on a misconception, that kind of behaviour constitutes bad faith and a judge would likely award the employee damages over and above the reasonable notice to which they would otherwise be entitled. While your employer did not make this threat, I have seen it happen too often.

As published in The Hamilton Spectator, March 29, 2009 Ed Canning practices labour and employment law representing both employers and employees with Ross & McBride LLP.