IN THE MATTER OF the UNEMPLOYMENT INSURANCE ACT, 1971
- and -
IN THE MATTER OF a claim for benefit by
FRANCINE TUCKER
- and -
IN THE MATTER OF an appeal to an Umpire by the claimant
from a decision of the Board of Referees given
at Barrie Ontario, on May 4, 1983.
CORRESPONDING FEDERAL COURT DECISION: A-381-85
DECISION
REED, J.
This is an appeal from a Board of Referees' decision upholding a disqualification imposed on the claimant for having lost her employment as a result of her own misconduct. Section 41(1) of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48, as amended provides:
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, a flight attendant, took medication (tranquilizers) not prescribed for her and, consequently, had to be relieved of her duties during the course of a flight because she was in an impaired condition. This led to a suspension and she applied for unemployment insurance benefits, giving as the reason for her loss of employment "suspended without pay pending investigation".
The Commission then wrote to the employer asking:
1) May we please have the reason why the above [the claimant] was suspended?
2) Was she warned about her actions prior to being suspended and what were the dates of her warnings?
The Commission received the following reply:
1) Intoxicated while on duty.
2) Was previously warned about other problems (attendance record) on May 7, Aug. 9, Aug. 19, Sept. 3, 1982. Previous history of poor attendance. *#1 was considered a cumulating incident.
A subsequent telephone call by the Commission to the employer elicited the following information, as recorded by the Commission Officer:
Claimant was initially suspended pending discharge, because an incident that happened on her last flight.
Claimant is a union member and has been previously warned about her absenteeism as per the collective agreement.
During flight it was found that she was not capable of performing her duties (intoxicated) and had to be relieved of her duties.
Company investigated circumstances and upon meeting with union in Jan/83 agreement was reached that claimant would not be discharged but a suspension of 4 months imposed.
The claimant was then disqualified by the Commission from receiving unemployment insurance benefits for four weeks. She appealed to the Board of Referees. The Board's decision reads as follows:
The claimant was present as was Mr. Day, representative of the Union. The claimant agreed that she had been impaired during the flight in question and that she had not been capable of performing her duties. She said she had not been relieved of her duties during the flight and had not been approached about her behaviour by her supervisor until the return flight home the next day. The claimant said her attendance record had been poor but it had all been occasions for which she had submitted doctors letter and for which she had been granted leave. The claimant claimed that she had used poor judgment in taking medication not prescribed to her which had caused her impairment. She asked that her foolish behaviour not be judged too severely as she had not intended to neglect her duties.
CONCLUSION;
The board weighed all the evidence presented and considered that absenteeism with medical excuses could not be considered misconduct. The Board considered the admission of impaired performance during a flight as "admission of misconduct". The Board considered the circumstances surrounding the event and felt there were some extenuating circumstances involved.
DECISION:
It is the unanimous decision of the Board that the appeal be DISALLOWED, however, the disqualification imposed under Sec. 41 & 43 of the Unemployment Insurance Act, 1971 to be reduced to 3 weeks.
The claimant's argument before me was that the Board had failed to exercise its jurisdiction (refer: section 95(a) of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48, as amended). She argued, through her representative, that the Board failed to consider that there must be a wilfulness in order to find misconduct, and that the claimant, in this case, had never had such mental animus because while she took medication subscribed for someone else she did not expect that to lead to impairment.
Counsel for the Commission argued that although it was not obvious from the record, the Board must have considered the claimant's mental intention and disbelieved her assertion. In any event, counsel for the Commission argued that the misconduct was the taking of medication prescribed for someone else regardless of whether or not there was wilful impairment.
The record does not disclose to me that the Board did address its mind to this crucial point, although, the Board in this case should be commended for its very thorough and well written decision. (It is far superior to most I have seen.)
The submissions made to the Board of Referees by the Commission read in part:
The Umpire in CUB 6999 has concurred with the Commission in a similar case, that performing work duties while being intoxicated is definitely industrial misconduct under the Unemployment Insurance Act and subject to a disqualification under section 41.
The Board of Referees' decision, as noted above, was:
The Board considered the admission of impaired performance during a flight as "admission of misconduct".
There is no indication that the Commission drew to the Board's attention the fact that impairment alone might not be sufficient to demonstrate misconduct. There is no indication that the Commission drew to the Board's attention the fact that if the Plaintiff's impairment was inadvertant, and not the result of wilful conduct, misconduct might not exist. There is no evidence that the Board focussed on this fact and indeed the Board's decision indicates that it did not.
The Board did reduce the disqualification imposed upon the claimant from four weeks to three but did not indicate exactly why it did so. Part of the statement of the Board's conclusion contains the sentence "the Board considered the circumstances surrounding the event and felt there were some extenuating circumstances involved."
The claimant, through her representative, explained that the extenuating circumstance which the Board had taken into account was her long service record, not her absence of mental intention. Even without the claimant's explanation of the Board's reduction of the disqualification period there is nothing in the record to indicate what extenuating circumstances the Board addressed itself to in reducing the disqualification period. I cannot conclude from the record, as it stands, that the Board addressed itself to the claimant's mental intention. Accordingly, this is an appropriate case for me to consider the claimant's case, and render a decision pursuant to section 96 of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48, as amended.
At the time -when the claimant's alleged misconduct occurred- the claimant found herself in a situation of intense personal stress; she took medication prescribed for someone else (which she later recognized was foolish) and thus unintentionally became impaired. It was this impairment which gave rise to the claimant's suspension.
In determining whether misconduct has occurred as that term is used in the Unemployment Insurance Act, 1971, it is not sufficient to say that the employer has declared the employee's actions misconduct - to accept such determination would mean that Boards and Umpires would be abdicating their role to the decision of employers. Equally, decisions made by arbitrators will not necessarily determine the issue. The Federal Court of Appeal in Attorney General of Canada v. Serge Perusse (decision dated December 14, 1981 Court file A-309-81) stated:
...the decision which the Board had to render was in no way dependent on the decision of the adjudicator of the grievance...finally the umpire committed a further error in assuming that the award allowing respondents' grievance proved that the latter had not lost his employment as the result of his misconduct. That is wrong. For the purposes of unemployment insurance, it is not for the adjudicator but for the Board of Referees and the Umpire to decide the question.
Accordingly, in this case, neither the employer's decision, nor that of the arbitrator is determinative. The most helpful statement of the test to be applied, and that which I adopt is that set out by Mr. Justice Cattanach in CUB 6666:
...That word standing alone is a term of art when used in its legal sense. In my view it is so used in subsection 41(1) and accordingly must have ascribed to it when describing the conduct of an employee the interpretation applied to its meaning in that context as determined in a fund of jurisprudence antecedent to its selection for use in the Statute by the draftsman.
Those general principles of the duty owed by a servant to his master are summarized in Halsbury's Laws of England (3rd Ed.) cited with approval by Lord Evershed, M.R. in Laws v. London Chronicle Ltd. ([1959] 2 All E.R. 285 at p. 287) reading, in part as follows:
Misconduct, inconsistent with the due and faithful discharge of the duties for which he is engaged, is good cause for his dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.
Thus if the acts of an employee are such as warrant his discharge as being inconsistent with the due and faithful exercise of his duties then it follows that the employee was discharged for misconduct.
In order to determine whether misconduct occurred in the present case, one must look to the general legal principles respecting that concept as it relates to employee - employer relationships. In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361:
It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others.
...Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may get ill and be unable to fulfil their obligations and they may make mistakes under pressure or through inexperience.
Black's Law Dictionary (1979, 5th Ed.) says of misconduct:
...its synonyms are misdemeanour, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.
...
Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent...
While the second excerpt above does not relate to the Canadian Unemployment Insurance Act, it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case.
I note also that in order for carelessness or negligence to constitute misconduct it must be of a serious nature (see CUB 3108, 5308, 6213). And, in cases where there is reasonable doubt, the issue must be resolved in favour of the claimant. (see CUB 2047, 4538, 5026).
The claimant's appeal is therefore allowed.
"B. Reed"
Umpire
OTTAWA, Ontario
March 29, 1985