IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim by
Shelley C. CAMPBELL
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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
OSHAWA, Ontario, on December 7, 1989.
DECISION
MacKay, J.
This appeal by the claimant from a unanimous decision of a Board of Referees was heard in Toronto on February 27, 1991. The Board upheld the decision of the Commission that the claimant had lost her employment by reason of her own misconduct, but a five-week disqualification imposed by the Commission pursuant to section 30 of the Unemployment Insurance Act, R.S.C. 1985, c.U-1 was reduced by the Board to three weeks in view of extenuating circumstances.
The claimant was dismissed from her employment as a security guard with Toronto Harbour Commissioners on August 29, 1989. In her application for benefits filed September 1, 1989 the claimant explains the dismissal:
I was fired from my job after receiving an infraction for not signing to acknowledge company memos and daily orders.
The infraction was for insubordination and disobeying a lawful order. I received 3 infractions. The third was for termination.
I grieved my infractions through my union President. No hearings as of yet. I was terminated on August 29, 1989.
A note by an interviewing officer shortly after the day of application includes reference to the claimant's statement that she was wrongfully dismissed and had contacted her union.
The Commission contacted the employer and information from the Director of Security advised that she had been dismissed for refusing to sign memos regarding procedures security officers were to follow as directed by her supervisors. Signature on the memos was deemed by the employer as necessary acknowledgement of procedures that security officers were to follow. The employer had followed a full range of disciplinary procedures from verbal warning to written warning to suspension and finally, dismissal.
On the basis of the information provided, the Commission determined and advised the claimant that she was deemed to have lost her employment by reason of her own misconduct and that she was disqualified from receiving benefits for five weeks. The decision was based on subsections 28(1) and 30(1) of the Unemployment Insurance Act which provided as follows at all relevant times:
28.(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.
30.(1) Where a claimant is disqualified under section 27 or 28 from receiving benefits, the disqualification shall be for such weeks following his waiting period, not exceeding six, for which benefit would otherwise be payable as are determined by the Commission.
There is no doubt that in this case the claimant lost her employment as a result of conduct which was characterized by her supervisor in written notices of infraction as insubordination and disobeying a lawful order. Previous cases have determined that wilful refusal to obey an employer's reasonable direction constitutes misconduct as provided for in section 28 of the Act (see Attorney General of Canada v. Bedell, Court File A-1716-83, June 3, 1986, (F.C.A.) and CUB 17780 (PIRES)). Not all circumstances of alleged misconduct warrant dismissal and where that is not warranted the conduct does not constitute misconduct within the meaning of section 28 of the Act (see Mr. Justice Martin as Umpire in CUB 16547 (RENOWDEN)).
In this case the claimant had been employed for two years as a security officer when she, and others, received a memorandum directing that shift reports be completed each day and, if not completed at the end of a shift without sufficient reason, disciplinary action would result. The recipients were asked to "sign this memo in the space provided to acknowledge your understanding of this situation". It was urged by her representative, in advance of and apparently at the Board of Referees hearing, that this was the first occasion on which employees had been requested to sign for material received and in this case, the memorandum related to forms which had been unavailable for some days despite requests for additional forms to be provided by management. The claimant did not sign that memorandum as requested though she did record it, as received and read, in a memo book which she kept and which was available to the employer. Three days later a further memorandum about shift reports was issued directing where copies of the report forms could be obtained, indicating disciplinary action if a report form was not completed at the end of the shift and asking recipients again to sign this second memorandum. Again, the claimant did not sign the memorandum but did record it as received and read in her memorandum notes. On July 19 a further memorandum concerning shift reports was issued directing that the second memorandum be signed forthwith or failure to sign it would be taken as disobeying a lawful order which would lead to disciplinary action. On July 31 a notice of infraction was issued to the claimant on the grounds of insubordination and disobedience of a lawful order for failing to sign the second memorandum concerning shift reports. On receipt of this notice the plaintiff filed a grievance with her union. A second notice of infraction on the same grounds was issued on August 18 for the claimant's failure to sign a daily order. She was suspended one day without pay and again the claimant filed a grievance with her union in accord with the collective agreement applicable. As on previous occasions she had made note of receipt of the order and of requests by her supervisor that she sign it. She also included in her shift report for August 18 reference to the direction from her supervisor to sign the order. Subsequently, the claimant again refused to sign a daily order and on this final occasion her employment was terminated, apparently following a third notice of infraction. With each of the notices of infraction the claimant filed a grievance through her union. None of the grievances had been considered, in accordance with the collective agreement, prior to her termination or at the time the matter was considered by the Board of Referees.
At the hearing before the Umpire, the union representative appearing on behalf of the claimant submitted that the series of memoranda and warnings to the claimant were really evidence of pressure in a situation where labour management relations were less than ideal. The claimant had been a senior employee in a bargaining unit of 18 members which had had a turnover of nearly 100% within her two years of service there. Subsequent to the termination of the claimant and one other, the supervisor of staff in the unit had been transferred. In addition, the representative stressed that the real test for misconduct was whether the action of the employee had any significant bearing on his or her ability to discharge their responsibilities or upon general discipline and order of concern to the employer. In this case mere refusal to sign memoranda had led to very serious penalties even though the employer was aware that the documents in question had been received and read by the claimant. When this matter finally got to arbitration in June, 1990, the employer and the union had agreed that it should be settled on terms withdrawing the infractions issued to the claimant, permitting the claimant as a griever to submit a letter of resignation, providing that the employer would, if contacted by any prospective employer, reveal only that the claimant had been employed and had terminated her employment at her own request to accept employment elsewhere, and finally providing for a monetary settlement to the claimant as a griever upon withdrawal of the grievances.
These developments, particularly the settlement of the claimant's grievances against the employer, were of course unknown to the Board of Referees since they were events which subsequently occurred. Counsel for the Commission urged that these not be taken into consideration in review of the Board's decision. While I agree that in the normal course events following the decision of a Board of Referees are not relevant in an appeal from its decision, section 86 of the Act provides as follows:
86. The Commission, a board of referees or the Umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of,or was based on a mistake as to, some material fact.
In the circumstances of this case, section 86, in my view, permits the umpire to take account of facts known only after the decision of the Board of Referees which are particularly relevant to the issue of misconduct found by the Commission on the basis of decisions by the employer. It will be recalled that from the beginning following her termination, the claimant considered that her dismissal was wrongful. It will also be recalled that she filed a grievance for each of three infractions considered by the employer as misconduct and that those grievances were unresolved when the Board considered the matter. While it is true there may be a variety of reasons which ultimately lead to settlement of a grievance matter, it is now clear that the employer's decisions concerning perceived misconduct on the part of the claimant were withdrawn, as were the infractions. Thus, in this case it cannot now be said, at the time of the hearing by the Umpire, that the employer perceived misconduct on the part of the claimant. In these circumstances, it would not serve the cause of justice to maintain a decision of the Commission that the claimant was dismissed from her employment because of her misconduct.
In conclusion, in light of new facts, relevant to the principal issue here involved, I conclude that the claimant's appeal should be allowed. This matter should be referred to the Commission for review of the situation of the claimant on the basis that the decision, that she was disentitled by reason of misconduct, is quashed.
W. Andrew MacKay
UMPIRE
OTTAWA, Ontario
May 1, 1991