Should employer attend EI hearing with dismissed employee

QUESTION: I recently terminated an out-of-office sales representative because I caught her lying about her sales efforts on the log sheets she turned in every week. There were a number of cases where she simply had not done what she said on the log.

When a government representative called me to ask me for the reasons for the termination, I told her. Apparently, my former employee’s application for Employment Insurance was refused. Now I have received a notice in the mail indicating that the employee is appealing that finding and that there is a hearing that I am invited to attend to present the employer’s position.

I can prove beyond a doubt that this employee lied on the log forms. But should I attend?

ANSWER: Probably not. People down at the Employment Insurance office may not appreciate this response but the truth is the truth. It’s not your money and it doesn’t cost you a dime if this employee gets Employment Insurance. Attending the hearing takes time and effort that does nothing for the bottom line of your business.

I assume that if you felt some moral obligation to attend and that the truth be told, you would not have asked the question. You asked me for legal advice not to be your conscience.

The danger in attending is that if you lose and the employee later sues you for a severance package, your ability to defend the action on the basis that she was terminated for just cause may be gone.

There is a legal principle with the Latin term attached which says that if an issue has already been decided you can’t fight it out again in another legal proceeding somewhere else. While this is an over-simplification of the rule, it means you could be prejudiced by attending this hearing. The Employment Insurance hearing will be handled by three individuals who work on a part-time basis and who are not employed by the government department that administers Employment Insurance. Neither you nor your lawyer will be allowed to ask questions directly of the employee when she tries to lie about what she said on the logs. Only the three referees can ask direct questions. Although my experience is that these referees generally do a good job, the system is simply not set up for evidence to be heard and scrutinized in a thorough manner.

If the were to decide she did not lie a judge in a wrongful dismissal case may refuse to let you try to prove that she did.

If you’ve got the goods on this former employee, save it in case she sues you.

Who knows, maybe if she does get Employment Insurance she’ll be less likely to come after you and you’ll be less likely to have to spend money on someone like me.