IN THE MATTER OF the UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER OF a claim for benefit by
RICHARD TINO
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IN THE MATTER OF an appeal to an Umpire by
the claimant from a decision of the Board of Referees
given at Windsor, Ontario on October 28, 1985
CORRESPONDING FEDERAL COURT DECISION: A-683-86
DECISION
REED, J.
This is a decision of the Board of Referees disentitling the claimant to six weeks benefits because he lost his employment by reason of his own misconduct. The Board's decision is completely inadequate. No finding of fact as required by subsection 94(2) of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48 as amended was made. The decision merely states:
In consideration of all available information and documents Exhibit 14, there was no new evidence provided that would alter the original decision.
It is the unanimous decision of the Board that the Insurance Officer's decision be upheld and the claimant's appeal be denied.
As well as being inadequate in lacking findings of fact the text of the decision indicates to me that the Board considers the insurance officer's decision as having a prima facie validity which the claimant has the burden to disprove. Such is not the case. The Board's role is to hear all the evidence and make its own independent judgment, determining what facts it believes to be true and stating what facts it relies on to reach its conclusion. The Board in this case applied the wrong burden of proof (an error of law) and it declined to exercise its jurisdiction (section 95(a) of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48).
Despite the deficiencies of the Board's decision a review of the file indicates that the claimant did indeed lose his employment as a result of misconduct. An employee has an obligation to obey the directions of his employer. While one act of disobedience will not normally justify dismissal for misconduct the cumulative effect of a series of such acts will.
The claimant's position was undergoing technological change. On April 17, 1985, a supervisor was assigned by the claimant's manager to sit with him for the day to ensure the work was completed. The claimant was having trouble with the new procedures. He objected to their implementation. The claimant also objected to the presence of a supervisor. He stated that he found it crowded and stressful. The manager considered that a supervisor was necessary to determine whether the claimant needed more training in order to cope with the new technology. The claimant states that the manager advised him that if he did not like it he could leave. The manager states that the claimant announced he was leaving despite the fact he had been informed that if he did so he would be subject to disciplinary action. The different versions of the incident are not significant. The claimant left for three days, April 17 to 19; an investigation was commenced in accordance with his collective agreement. He returned to work. A fuller investigation was held in May. He received his notice of dismissal on June 7, 1985. At the time of the incident the claimant had 35 demerit points logged against his name for similar incidents to that which had occurred on April 17, 1985. Indeed at one time the demerit points had totalled 55 but it is the policy of his employer C.N.R. to subtract 20 demerit points when an employee exhibits a year of good behavior. Because of the severity of the last incident, and the fact that four similar incidents had occurred, he was assessed 30 demerit points for the April 17 incident. This brought his total to 65; the company had grounds to discharge when an employee's demerit points reached 60. At the time of the incident the claimant was the Windsor representative of his union.
The claimant argues that as a union representative he is entitled to special consideration. This is not so. An employer cannot fire an employee under the guise of misconduct when the real motivation is to put an end to legitimate union activities. But, union representatives have the same obligations as all other employees, to accept the direction of the employer with respect to the performance of the job. There is no evidence on the file that would indicate that the firing in this case was related to the claimant's union activities.
The claimant argues that much of the evidence relied upon is hearsay and therefore not reliable. That may be so but the fact that an investigation was held pursuant to the claimant's collective agreement, before his dismissal is weighty evidence. In addition his record of past demerit points is essentially not a disputed fact. As noted above a record of incidents of misconduct is justification for dismissal, see Christie, Employment Law in Canada at page 366. Accordingly the Commission's decision disentitling the claimant to benefits for 6 weeks is upheld. And, I can see no extenuating circumstances which would call for a reduction of the six week period.
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Umpire
OTTAWA, Ontario
October 10, 1986