Executive Summary: Key Legal and Evidentiary Issues

• Whether the claimant’s repeated failure to attend three consecutive shifts without following the employer’s notification policy constituted “misconduct” under section 30(1) of the Employment Insurance Act.
• Significance of the employer’s written Attendance and Punctuality policy, including the express clause deeming three no-show, no-call absences as job abandonment justifying termination.
• Weight given to email communications with Human Resources versus strict compliance with the requirement to notify the direct supervisor and provide reasons and an expected return date for each missed shift.
• Adequacy of the General Division’s treatment of evidence about the claimant’s training on, and knowledge of, the attendance policy and consequences of non-compliance.
• Scope of the Appeal Division’s jurisdiction under section 58(1) of the DESDA, particularly its limited role in correcting only specific errors of law, jurisdiction, natural justice or perverse findings of fact.
• Whether the Appeal Division’s refusal of leave to appeal—alleged breaches of natural justice and failure to apply the correct test for “misconduct”—met the reasonableness standard on judicial review.

Background and employment relationship
The case arises from the dismissal of Rodney Sekitoreko, who began working as a night-shift forklift driver for CWT Staffing Inc. in June 2024. His shifts ran from 10:00 p.m. to 8:30 a.m. The employer maintained an Attendance and Punctuality policy that governed absences and late arrivals, and Mr. Sekitoreko signed an acknowledgment on June 18, 2024 confirming he had read and been trained on this policy. The employer also had an Employee Discipline policy that treated job abandonment as the most serious level-three infraction, attracting suspension or dismissal.

Attendance policy and alleged job abandonment
Under the Attendance and Punctuality policy, an employee was required to give at least one hour’s notice to their direct supervisor or manager before the start of each shift they expected to miss. That notice had to specify the reason for the absence and the anticipated return date. The policy further stated that if an employee failed to report for work and failed to notify their supervisor for three or more consecutive shifts, the employee would be deemed to have abandoned their job and their employment would be terminated. In early November 2024, Mr. Sekitoreko’s car broke down. On 5 November 2024 he emailed the Human Resources Manager explaining that he could not afford repairs, that there was no available bus service to work, and that without his car he could not reliably attend his night shifts. The HR Manager suggested rideshare options or arranging rides with co-workers and reminded him it was his responsibility to attend his shifts and arrange transportation, but she granted him one week, until 12 November 2024, to repair his vehicle. Mr. Sekitoreko replied that he understood his responsibilities and would provide updates. On 11 November 2024 he emailed again, indicating he had received an estimate for the repairs but needed time to pay for them. The following day, 12 November 2024, the HR Manager responded that he was needed at work and would have to find an alternative way to attend his shifts. He replied that he remained available to work but could not afford the repairs and asked if the employer could provide financial assistance. Despite this exchange, Mr. Sekitoreko did not attend his shifts on 12 and 13 November 2024, and he did not inform his supervisor in the manner and with the details required by the policy. On 14 November 2024, the HR Manager wrote to him stating that she was aware of his recent absences and directing him to attend his shift that evening, warning that otherwise she would treat the situation as job abandonment and terminate his employment. He responded that he still lacked transportation and again asked for financial help, framing such assistance as evidence of the employer’s care and support for its employees. He did not attend the 14 November shift and again did not notify his supervisor in accordance with the policy. On 15 November 2024, the HR Manager issued a termination letter and a record of employment stating that he had been dismissed for job abandonment after missing three consecutive shifts without proper notice.

Employment Insurance claim and tribunal proceedings
Shortly after being dismissed, Mr. Sekitoreko applied for Employment Insurance benefits. On 19 December 2024, the Canada Employment Insurance Commission decided that he was disqualified because he had lost his job due to his own misconduct, within the meaning of section 30 of the Employment Insurance Act. He sought reconsideration of that decision, but on 6 March 2025 the Commission confirmed its original view. Mr. Sekitoreko then appealed to the General Division of the Social Security Tribunal. After a hearing, the General Division concluded that he had been dismissed for failing to report for work for three consecutive days without proper notice, in clear breach of the employer’s Attendance and Punctuality policy. The General Division accepted that he had communicated with the HR Manager about his transportation difficulties but found that these communications did not comply with the specific policy requirements: he did not contact his supervisor, did not provide reasons for his absences to that supervisor, and did not provide an expected return date. The tribunal also considered and rejected his claim that he had not been properly trained on the policy, relying on his signed acknowledgment and his own admission that the normal procedure when absent was to email his supervisor. It noted further that he received the 14 November email warning that failure to attend that night would result in dismissal. On this basis, the General Division held that he knew, or ought to have known, that his conduct could lead to dismissal and therefore met the jurisprudential test for “misconduct” under the EI Act. Having lost his employment because of misconduct, he was disqualified from benefits. Mr. Sekitoreko then applied to the Appeal Division of the Tribunal for leave to appeal, arguing that the General Division had made errors of law, errors of fact, and breached his right to procedural fairness. On 29 April 2025, the Appeal Division refused leave, concluding that none of his arguments had a reasonable chance of success under the statutory grounds of appeal.

Legal framework for misconduct and appeals
The Federal Court set out the statutory framework. Section 30(1) of the Employment Insurance Act disqualifies a claimant from benefits where they “lost any employment because of their misconduct,” unless they later re-qualify through sufficient insurable hours or are subject to specific disentitlement provisions. “Misconduct” is not defined in the statute; instead, case law has held that it involves wilful conduct, meaning acts that are conscious, deliberate or intentional, and that bear a causal link to the loss of employment. The threshold is relatively low: it is sufficient that the claimant understood or should have understood that dismissal was a real possibility flowing from their actions. Separate legislation governed the appeal process. Under subsection 56(1) of the Department of Employment and Social Development Act (DESDA), a party may appeal a General Division decision to the Appeal Division only with leave. Subsection 58(1) of the DESDA strictly limits the grounds of appeal to: a failure to observe a principle of natural justice or jurisdictional error; an error of law; or a decision based on an erroneous finding of fact made perversely, capriciously or without regard to the evidence. The Appeal Division therefore does not conduct a broad reconsideration of the merits or reweigh evidence; its mandate is confined to reviewing for the specific types of errors Parliament has identified. On judicial review of the Appeal Division’s refusal of leave, the Federal Court applied the reasonableness standard. The Court examined whether the refusal decision, including both reasoning and outcome, was transparent, intelligible and justified in light of the facts and governing law, following the Supreme Court’s framework in Vavilov.

Arguments advanced on judicial review
In the Federal Court, Mr. Sekitoreko argued that the Appeal Division had erred in law by failing to apply the correct legal test for misconduct and by overlooking that his absences were caused by circumstances beyond his control, namely extreme financial hardship and lack of transportation. He maintained that he had not acted wilfully, so his conduct should not qualify as misconduct under section 30(1). He also asserted that he had complied with the employer’s policy by reporting his situation to the HR Manager through detailed emails, and that the Appeal Division failed to scrutinize what he saw as an overly rigid application of the policy by his employer. He said the tribunal bodies had not properly engaged with evidence of his financial distress and the employer’s refusal to provide financial support. Additionally, he alleged breaches of procedural fairness, claiming that the General Division member told him she prioritized the employer’s evidence and did not fully consider his materials, and that the Appeal Division had issued only a conclusory endorsement of the General Division’s decision without grappling with key evidence. The Attorney General, as respondent, argued that the Appeal Division had correctly applied the narrow leave-to-appeal test under section 58(1) DESDA, that Mr. Sekitoreko had not identified any reviewable error, and that the refusal of leave was reasonable.

Federal Court’s analysis and outcome
The Federal Court began by examining the actual grounds of appeal that Mr. Sekitoreko had put before the Appeal Division, since those framed the issues the Appeal Division was required to address. At the leave stage he had asserted broadly that the General Division made significant errors of law (without specifying any), that it made factual errors about his training on the policy and his communications with HR, and that procedural fairness was breached because a tribunal officer allegedly stated she prioritized the employer’s information and disregarded the claimant’s submissions. The Court held that the Appeal Division reasonably concluded that none of these grounds disclosed an arguable case. On the alleged errors of law, the Court agreed that Mr. Sekitoreko had not actually identified a legal error by the General Division. His true complaint was that the tribunal had applied settled legal principles about misconduct to the evidence in a way he disagreed with. The Court stressed that applying the legal test for misconduct to the facts is a question of mixed fact and law, not pure law, and thus falls outside the Appeal Division’s jurisdiction under paragraph 58(1)(b) of the DESDA. On the alleged factual errors, the Court found that the General Division clearly recognized and considered the email correspondence with the HR Manager, the evidence of policy training, and Mr. Sekitoreko’s own admissions about the normal procedure for reporting absences. Its findings—that his emails to HR did not amount to proper notice under the policy, that he missed three consecutive shifts without following the prescribed procedure, and that he knew he risked dismissal if he did not attend the 14 November shift—were reasonably grounded in the record. As such, the Appeal Division was entitled to conclude that there was no basis to find a perverse, capricious or evidence-ignoring factual error. Regarding natural justice, the Court held that the record showed Mr. Sekitoreko had a fair opportunity to present his case to the General Division and that the decision addressed his main arguments. The audio recording and reasons did not support his claim that the tribunal member explicitly prioritized employer evidence over his own. The Appeal Division therefore acted reasonably in rejecting any procedural fairness or natural justice issue. Having reviewed the Appeal Division’s decision as a whole, the Federal Court found it met the standard of justification, intelligibility and transparency required on judicial review. In light of the statutory constraints on the Appeal Division’s mandate, the Court concluded there was no basis for interference. It dismissed the application for judicial review, ordered that the style of cause be amended to name the Attorney General of Canada as the respondent, and recorded that there would be no award of costs because the respondent did not seek them. As a result, the Attorney General of Canada was the successful party in the proceeding, and no monetary award, damages or costs of any kind were ordered in favour of any party, so the total amount granted was effectively zero.