I am commonly asked whether unemployment insurance benefits are available to employees that have been fired from their job. In short, the termination must be for "wilfull misconduct" in order for unemployment insurance benefits to be denied. In other words, even if the employee is terminated for cause, unless the employee engaged in wilfull misconduct, benefits should not be denied.
The following definition of wilfull misconduct applies:
"An individual's failure to perform properly or neglect of duty is wilful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests."
When a claimant was discharged for failure to perform his or her work properly, the determination of misconduct will therefore depend on:
- The wilfulness of the claimant's failure to perform properly, or
- The degree of negligence, or
- Recurrence of negligence after warnings or reprimands.
In the absence of wilfulness, gross negligence, or recurrence of negligence after warnings or reprimands, the claimant's failure to perform his or her work properly would not be misconduct.
Importantly, if an employee is falsely accused of misconduct as a pretext for a wrongful termination (such as retaliation for complaining about sexual harassment, disability discrimination or whistleblowing), it is important that the employee properly and timely challenge the false excuse during the unemployment application or the appeal process. Appeals are required to be mailed 20 days after notification of the denial of benefits. It is very common for benefits to be denied where the employer offers a false termination excuse. But we usually see that denial reversed on appeal after a hearing and consideration of the evidence.
As part of our contingency fee agreement, we assist our wrongful termination clients during the unemployment insurance application process and handle any appeal that is required.