IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
ROGER ALLAN
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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
Niagara Falls, Ontario October 11, 1991.
DECISION
JEROME, A.C.J.
This is an appeal by the claimant from a decision of the Board of Referees which held he lost his employment by reason of his own misconduct.
Mr. Allan was employed as a conductor with CNR from August 13, 1984, to June 14, 1991. He made application for unemployment insurance benefits on June 28, 1991, stating he was no longer working as he had been suspended for three months. The Record of Employment submitted in support of his application confirmed the claimant bad been suspended for violation of Rule 42 of Canadian Railway Operating Rules. The alleged violation was that the train being conducted by the claimant entered into the working limits of a repair crew without first having received permission from the foreman.
Based on this information the Commission determined the claimant had lost his employment by reason of his own misconduct. He was disqualified from receiving benefits for nine weeks effective June 23, 1991. In addition, his benefit rate was reduced from 60% to 50% of his average weekly insured earnings.
The claimant appealed to a Board of Referees which dismissed his appeal. The Board reviewed the facts and found Mr. Allan did not dispute the violation of Rule 42. It rejected the claimant's argument that the violation was an error and did not represent misconduct.
Pursuant to sections 28 and 30 of the Unemployment Insurance Act a claimant who loses his employment by reason of his own misconduct is subject to a disqualification from benefits. Although the term "misconduct" is not defined in the legislation, the jurisprudence has established that whether the conduct of an employee which results in the loss of his employment amounts to "misconduct" will depend largely on the circumstances of each individual case. Where it is alleged that an individual was fired for misconduct the Commission and the employer have a heavy onus of proof. In CUBS 11648 (Ingrouville) and 19516 (Quackenbush), it was held that there must be "clear, strong and unequivocal evidence" for the Board of Referees to make such a finding.
Furthermore, in AG. of Canada v. Tucker, [1986] 2 F.C. 329, the Federal Court of Appeal held that proof of misconduct requires proof of intentional or reckless behaviour leading to dismissal. Mr. Justice MacGuigan, writing for the majority, stated at p. 8:
I have no hesitation in concluding that Reed, J. correctly interpreted subsection 41(l) as requiring for disqualification a mental element of wilfulness or conduct so reckless as to approach wilfulness.
(emphasis added)
Applying that principle to the facts in the present case, I am satisfied Mr. Allan did not lose his employment by reason of misconduct. The claimant has maintained throughout, and there is no evidence submitted by the employer or the Commission to the contrary, that the violation of Rule 42 was not deliberate and he was not even aware of the infraction until later advised. There were clearly extenuating circumstances, an extraordinary number of flags on the date of the incident and ambiguity in the operating orders, which contributed to the confusion and ultimate infraction.
Insofar as the Board of Referees failed to consider the requisite mental element necessary for a finding of misconduct, it erred in law in making its decision.
For these reasons, the decision is set aside and the claimant's appeal is allowed.
James A. Jerome
CHIEF UMPIRE
OTTAWA
June 22, 1994