TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER of a claim for benefits by
ROSS, Daniel
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IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
in Baie-Comeau, Quebec, on January 8, 1987
CORRESPONDING FEDERAL COURT DECISION: A-1040-87
DECISION
DUBÉ, J:
The official determined that the claimant lost his employment with Le Boucanier 1985 Inc brewery as a result of misconduct and he was disqualified from receiving benefits for a period of six weeks beginning on November 23, 1986.
By a majority the board of referees upheld this decision, noting that the appellant had drinking problems, that his conduct was sometimes aggressive toward customers and staff and that following a shouting match with his employer, the latter dismissed him. The majority judgment simply noted that "although it might be assumed that the appellant's union activities helped to bring about the dismissal, it was absolutely impossible to ignore his misconduct". The board consequently reduced the disqualification from six to four weeks.
On the other hand, the dissenting member was of the opinion that "Mr. Ross's dismissal resulted from the fact that the employer had identified him as the instigator of an attempt to achieve union certification that was under way at the company".
The case law has established in the past that the use of abusive language against the employer may constitute misconduct (CUB 8034 and 7366). It is true that the participation of an employee in union activities is not in itself and cannot be considered by the employer to be misconduct. However, a claimant may be dismissed for both misconduct and union activities (Denis Davlut v. Attorney General of Canada, Federal Court of Appeal, A-241-82). In such a case the board of referees or the Umpire must consider whether there is reason to apply the provisions of subsection 43(1) of the Act to reduce the period of disqualification and that is precisely what the majority of the board did in the instant case, as I noted earlier, reducing the disqualification from six to four weeks.
The claimant and his representative, the employer and its counsel were present before the board of referees, which considered the evidence and held by a majority that there was evidence of misconduct. This was accordingly a pure assessment of fact, which falls within the jurisdiction of the board. There is therefore no reason for the Umpire to set aside such a decision. The evidence in the record justified the board in reaching the decision it rendered.
In the circumstances the appeal is dismissed.
J.E. DUBÉ
UMPIRE
OTTAWA
September 18, 1987