TRANSLATION
IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefits by
Michel BRISSETTE
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IN THE MATTER of an appeal to the Umpire by the
Canada Employment and Immigration Commission from the decision of a Board of Referees
Referees given at Joliette, Québec May 2, 1991
CORRESPONDING FEDERAL COURT DECISION: A-1342-92
DENAULT, J., UMPIRE:
The Commission appeals a decision of the Board of Referees, which set aside the decision of the Commission's officer to disqualify the claimant from receiving unemployment insurance benefits for a period of seven weeks on the grounds that he had lost his employment because of misconduct.
The facts are straightforward, and should be briefly summarized. The claimant, who had worked as a truck driver for a transport company since May 25, 1988, was dismissed on January 22, 1991 because his driver's licence had been suspended. The event resulting in this suspension had occurred two years earlier, on a Sunday afternoon, when the claimant had been intercepted by the police and obliged to take a breathalyser test. At that time, he was at the wheel of his own automobile, outside his working hours. When he claimed unemployment insurance benefit, the Commission saw this as a case of misconduct, and disqualified him from receiving benefits for seven weeks. The Board of Referees, after gleaning from case law some concepts of misconduct, which is in fact not defined by the Act, examined the evidence and concluded that the facts before it did not amount to misconduct. The Board expressed itself in the following terms:
DECISION
New exhibits have been added in this case, namely Exhibits 10.1 and 10.2. The representative of the claimant refers us to CUBs 7007 and 7230 as part of his arguments. CUB 7230 contains the following definition of misconduct:
1.Citation of Dubinsky, J.: "Misconduct has to do with malfeasance connected with the work itself".
2.Citation of Cattanach, J.: "Misconduct has to do with malfeasance connected to the relationship between master and servant or employer and employee".
The case that concerns us here involves a claimant who lost his driver's licence because his alcohol blood level had been found to be higher than 0.08 following a routine check by police on a Sunday in July 1989, outside the claimant's hours of work.
The members of the Board of Referees had to determine whether the claimant lost his employment because of misconduct. As cited above in the two (2) definitions given by the learned justices, it was clear to the members of the Board of Referees that the claimant had not lost his job due to misconduct, but rather because he no longer fulfilled the conditions of his employment. In other words, he no longer had a driver's licence and could no longer be regarded as a truck driver.
For all these reasons, the member of the Board of Referees unanimously set aside the decision of the Commission.
In my view, this decision does not involve any error in law or in fact, and does not require the intervention of the Umpire. It has long been recognized in case law that the issue as to whether an employee's conduct resulting in loss of his employment constitutes "misconduct" depends primarily on the circumstances of each individual case. While the interpretation of the word "misconduct" is a question of law, the issue as to whether a particular act or omission by an employee is covered by the definition of this term is a question of fact (see Attorney General of Canada v. Bedell, F.C.A. A-1716-83). In the case before us, the Board of Referees deemed that "the claimant did not lose his employment because of misconduct, but rather because he no longer fulfilled the conditions of his employment, i.e. he no longer had a driver's licence and could no longer be regarded as a truck driver". In case law, it has sometimes been held that misconduct outside the place and hours of work could justify dismissal, provided that the misconduct were sufficiently related to the employment to require dismissal (CUB 12635). It has also been held (CUB 12882) that any act of a claimant during or outside his hours of work that leads to his dismissal constitutes misconduct. In this case, the Umpire asserted:
Misconduct under the Act should mean any activity on the part of the claimant, whether on or off the job, that directly leads to the dismissal.
In this case, the claimant, who knows he must have his driver's permit to be employed, loses his permit as a result of his impaired driving. By his actions, he causes the loss of his employment.
This, in my opinion, is misconduct.
With all due respect for the contrary opinion, I believe that this decision goes much too far. While singularly restraining the activities of an individual outside his hours of work, it imposes on the claimant, in a way, the burden of proving that the loss of his employment is not attributable to his own fault. According to the general economy of the Act, it is rather the Commission that must prove that the actions of a claimant constitute misconduct justifying his disqualification from receiving benefits. In the case before us, the Commission has manifestly failed to provide such proof to the Board of Referees, and there is no reason for me to intervene to vary the decision of the Board. Moreover, I think that the concept of misconduct implies a deliberate or voluntary act by an employee in regard to his employer or in his working relationship with his employer. The mere occurrence of an external fact that places the employment in jeopardy or justifies dismissal does not in itself constitute a form of misconduct.
For these reasons, the appeal of the Commission is dismissed.
UMPIRE
June 3, 1992
2011-01-10