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Employment - Nature of Relationship. Henriques v. Canada (Attorney General)
In Henriques v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed a JR, here brought against "a decision of the Social Security Tribunal of Canada – Appeal Division (the Appeal Division) that dismissed his appeal of a decision of the General Division of that same tribunal", that holding the applicant had been dismissed for misconduct where "in his work in IKEA’s customer support call centre, he was repeatedly rude, aggressive and disrespectful with clients".
This EI 'misconduct' case illustrates the inherently subservient nature of the employment relationship:[3] The General Division noted correctly that Mr. Henriques was not entitled to EI benefits if he was dismissed because of his own misconduct: section 30 of the Employment Insurance Act, S.C. 1996, c. 23. The General Division also correctly noted at paragraph 39 of its decision that "“[t]here is misconduct if [Mr. Henriques] knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that”" (citing Mishibinijima v. Canada (Attorney General), 2007 FCA 36, 379 D.L.R. (4th) 121). An application for EI benefits is not the proper venue to question employer policies and the validity of employment dismissals: Sullivan v. Canada (Attorney General), 2024 FCA 7, [2024] F.C.J. No. 31 at para. 6.
[4] The General Division went on to consider the evidence concerning Mr. Henriques’ conduct and concluded that he had indeed engaged in misconduct in that he knew or ought to have known of IKEA’s policy on dealing with customers, he knew of the potential consequences of not complying with that policy (having previously been warned), and he willfully went against the policy by telling a customer to "“shut up”". The General Division also concluded that he was dismissed because of that misconduct.
[5] It is clear that Mr. Henriques disagreed with aspects of IKEA’s policy on dealing with customers, but that disagreement did not alter his obligation to comply with the policy.
[6] Mr. Henriques also takes issue with the General Division’s factual conclusions on how he behaved with IKEA’s customers. However, it was the General Division’s role to draw those conclusions. The Appeal Division and this Court have only limited powers to intervene. With regard to factual conclusions, the Appeal Division could intervene only where the General Division "“based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”" (see paragraph 58(1)(c) of the Department of Employment and Social Development Act, S.C. 2005, c. 34). This Court may question the Appeal Division’s conclusions in that regard only if they are unreasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. We are not convinced that this is the case. The General Division and the Appeal Division considered the evidence, and Mr. Henriques has not shown that any of it was ignored or that any findings of fact were made in a perverse or capricious manner.
[7] The fact that warnings to Mr. Henriques about earlier misbehaviour might have occurred so long before that they could be considered expired does not alter the facts described above that led to the conclusion of misconduct: he was aware of IKEA’s expectations and of the potential consequences of failing to comply with them, and he willfully acted in contravention of those expectations.
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