Wednesday, December 11, 2013

Dispelling Unjustified Fears - The Record of Employment (ROE)

The end of an employment relationship is rarely a pleasant experience for anyone involved. Particularly for a dismissed employee, heightened emotions and confusion can lead to genuine anxiety and stress.

In the midst of all of this turmoil, an employer issues a Record of Employment (ROE) to the employee.

An ROE is a form an employer is required to issue each time an employee experiences an interruption of earnings (Service Canada). The form lists information such as an employee's name, address, Social Insurance Number, the first day of employment, the last day for which the employee was paid and the reason for the issuance of the ROE.

The issuance of the ROE is often disconcerting for employees who have been dismissed for cause (often listed as "Code M" under Block 16 of the ROE).  This blog post will attempt to address three of the most common questions about the Record of Employment that I am asked by employees that have been dismissed for cause.

Will my ROE be disclosed to my new employer?

According to section 19 of the Employment Insurance Regulations SOR/96-332an employer must issue an ROE to the former employee and Service Canada.  A copy must be retained for the employer's own records for a period of six (6) years

The stigma attached to a dismissal where cause has been alleged often clouds the purpose of an ROE - which is used to determine whether an employee is eligible to receive Employment Insurance benefits. Only the former employee, the employer and Service Canada are privy to the information contained in a ROE. No one else is entitled to the disclosure of one's ROE. 

Will I qualify for Employment Insurance if my ROE states "Dismissal"?

Pursuant to section 33(1) of the Employment Insurance Act, "a claimant is not entitled to receive benefits if the claimant loses an employment because of misconduct or voluntarily leaves without just cause."

A notation of "Dismissal" on an ROE will therefore generally trigger an investigation by Employment and Social Development Canada (formerly Human Resources Development Canada) as to the circumstances of the dismissal. Unless there is a finding of genuine, objective misconduct, however, Employment Insurance benefits will not typically be denied. Similarly, where an employee has been constructively dismissed or has resigned for lawful reasons relating to the employer's misconduct, Employment Insurance benefits may still be allowed.

Where Employment Insurance benefits are denied, a claimant can appeal by requesting that the Social Security Tribunal reconsider Service Canada's decision. A formal request for reconsideration must be made within 30 days from the date the original decision was communicated to the claimant.

Will the ROE be submitted to the police or other government authority?

The ROE is not submitted to the police. 

The involvement of police could conceivably occur where employment has been terminated due to theft, fraud, drugs in the workplace or assault.

This, however, does not mean that police involvement is a given. 

If a criminal investigation is pending, however, the authorities may be able to access all employment-related documentation, generally with the employer's consent.
- Nitin Pardal, Toronto
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