Tribunal looks at importance of motive in misconduct cases
A Canadian lead flight attendant lost her bid for Employment Insurance benefits after a tribunal ruled on that her conduct at work amounted to misconduct, regardless of whether she intended harm.
The worker was dismissed on Feb. 7, 2025, following an incident on a work flight on Dec. 18, 2024. Her employer terminated her for "engaging in conversations and asking questions that are sexual in nature creating an uncomfortable environment for team members."
In a decision written by Appeal Division member Solange Losier of the Social Security Tribunal of Canada, found that the lower tribunal, the General Division, had made two separate errors in ruling in the claimant's favour.
Sexual remarks on flight
A colleague had filed an official complaint, telling the employer that the flight attendant had asked her frequently and repeatedly about her sexual preferences and then shared her own sexual preferences within earshot of passengers.
Another colleague told the employer that the flight attendant was openly talking about her favourite sexual positions and made a sexual remark about the complainant.
The flight attendant acknowledged using crude sexual language but argued she had an operational reason for part of the conversation, citing two passengers who had been seen performing a sexual act on a previous flight weeks prior. She maintained she had no intention of making sexual advances or comments to her colleague.
Harassment policy at airline
The employer's Harassment and Violence in the Workplace Policy, at section 6.6, explicitly identifies prohibited conduct as "engaging in unwanted physical contact, making sexual comments or advances." The policy further states that "an employee who subjects another to harassment or violence in the workplace will be subject to disciplinary action appropriate to the severity of the incident, up to and including dismissal."
Evidence confirmed the flight attendant had received onboarding and annual policy training throughout her roughly five years of employment. Her disciplinary record included a letter of expectation in February 2023 for a confidentiality breach, a first warning, and a suspension in 2024.
The employer suspended her on Jan. 17, 2025, to investigate the allegations before issuing the termination letter on Feb. 7, 2025.
Motives and misconduct
Losier found that the lower tribunal, the General Division, had made two separate errors in ruling in the claimant's favour.
The first was a legal error: the General Division had focused on the flight attendant’s motives and effectively required wrongful intent, which is not what the law demands. Binding Federal Court of Appeal precedent holds that misconduct only needs to be "consciously, deliberately or intentionally" committed.
The second was an evidentiary error: the General Division had ignored or overlooked important evidence of the worker’s prior disciplinary history when concluding she did not know and could not have known her conduct might lead to dismissal, which Losier found was directly relevant to that very question.
Both errors led Losier to substitute her own decision in place of the General Division's. The flight attendant's documented training and prior discipline were central to the outcome. Because she had been previously disciplined and trained, Losier found she "knew or ought to have known that making sexual comments at work could lead to her dismissal."
The decision concluded plainly: "The claimant lost her job due to her own misconduct. She is disqualified from getting benefits."
