IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Raphael FULLER
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from the decision of a Board of Referees given at
Islington, Ontario on August 4, 1976.
DECISION
MAHONEY, J.
This is an appeal, by leave, from the unanimous decision of a Board of Referees upholding a six week disqualification imposed under section 41(1) of the Act on the ground that the Claimant had lost his employment by reason of his own misconduct:
41.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
The Claimant was a shop steward for his local union employed in an assembly line operation. On March 24, 1976, there was a brief, illegal and unauthorized work stoppage on the assembly line. The Claimant participated in the work stoppage but neither led nor incited it. After the stoppage he went to the water fountain for a drink, was called from there into his supervisor's office and suspended. The following day he was discharged on the grounds that:
a) he had taken part in the illegal work stoppage, and
b) he had refused, "after being asked a number of times by your foreman and a member of the Shop Committee", to return to work.
No one else was fired as a result of the incident.
The principle of importance upon which leave to appeal was granted derived from the Chairman's concern that the Claimant had been treated differently by the employer than other workers identically involved in the stoppage.
Misconduct justifying lawful dismissal is not to be found lightly. Authorities of considerable antiquity established that misconduct must be "personal" (CUB 963) and that the proof thereof must be "conclusive" (CUB 702). Where conclusive proof of personal misconduct exists, section 41(1) still requires that the loss of employment be "by reason" of the misconduct. In other words, it must be the cause of the dismissal and not merely an excuse for it.
I should not for a moment suggest that the Commission, a Board of Referees or an Umpire have any business enquiring into an employer's exercise of discretion as to whether to fire one employee and not another in the same or similar circumstances of misconduct. One might, for example, have had a "record" of misconduct while the other was a "first offender", so to speak. We must, however, enquire whether a claimant did lose his job by reason of his misconduct or whether he was fired as an example and the misconduct merely made it possible for the employer, lawfully, to make him an example.
The Board of Referees did not, in its decision, make the necessary findings of fact that would support its conclusion that the Claimant was fired for his personal misconduct. The clear evidence is that he took part in the work stoppage but so did a number of others. His part was not to be distinguished from the parts taken by the others. The requests to return to work by the foreman and the Shop Committee member were not directed particularly to the Claimant, they were directed generally to all those participating in the stoppage. The only particular words which were directed to the Claimant followed his trip to the water cooler, which was not itself improper. The Claimant's distinction was that he was shop steward and that was immaterial to whether or not his conduct was misconduct and, if misconduct, its degree of gravity so as to be reason for his discharge in preference to others.
The most probable conclusion to be drawn from the facts found by the Board of Referees is that the Claimant did not lose his employment by reason of his misconduct. He lost it because he was selected as an example; his misconduct made that selection possible. The appeal is allowed.
Hon. Mr. Justice Patrick M. Mahoney, P.C.
Umpire
Ottawa, Canada
February 4, 1976.