CORRESPONDING FEDERAL COURT DECISION: A-236-94
IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
BRUCE JEWELL
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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 on
August 27, 1992, at Windsor, Ontario
DECISION
Rothstein, J. (UMPIRE):
This is an appeal from a decision of a Board of Referees dated August 27, 1992, upholding a decision of the Commission that the claimant lost his job by reason of his own misconduct. The claimant was disqualified from receiving benefits for eight weeks and had his benefit rate reduced from sixty percent to fifty percent of his average weekly insured earnings for the balance of his benefit period. The claimant was a teacher at St. Clair College in the industrial arts division. One of the male students was conducting himself in an obnoxious manner and was provoking the claimant. The claimant called the student an "asshole". The employer considered this unacceptable conduct and terminated the claimant.
The test for dismissal for "misconduct" as the word appears in Section 28 of the Unemployment Insurance Act, R.S.C., [1985], c. U-1, as amended, was referred to by Cattanach J. in CUB 6666. At page 4, Cattanach J. cited 25 Halsbury's Laws of England (3rd.ed.) at page 485:
""Misconduct", inconsistent with the due and faithful discharge of the duties for which he is engaged, is good cause for his dismissal, but there is no fixed rule of law defining the degree of "misconduct" which will justify dismissal."
At page 13, Cattanach J. stated:
"Minor or insignificant instances of misconduct which have no material bearing on the perpetrator's efficacy in job performance, and are not detrimental to the employer's interests or discipline are not just cause for dismissal."
At page 4 of his reasons, Cattanach J. stated:
"Thus, if the acts of an employee are such as warrant his discharge as being inconsistent with the due and faithful exercise of his duties then it follows that the employee was discharged for misconduct."
There is no conflict in the evidence as to what occurred and the claimant admits uttering the obscenity after being provoked. I do not condone the use of foul language, especially by teachers towards students. However, one would have to be totally out of touch with reality not to know that male college students, and perhaps female students for that matter, have heard and used this language before. As a general rule, teachers as role models should conduct themselves with restraint and control. However, the circumstances of each case must be considered on its own merits. If an obscenity was used by a teacher, was the teacher provoked? Is there evidence that the teacher regularly used such language directed at the students? Is there other questionable conduct by the teacher, most importantly, has the teacher been warned or reprimanded for the use of such langauge? It seems to me that these, at least, are relevant considerations in determining whether an incident involving the use of foul language is sufficient to constitute misconduct resulting in termination. In this case, the evidence is of only one incident; the teacher was provoked. The student involved was male and the environment was an industrial art shop. There is no suggestion that this was not the first occurrence of this type for the claimant. This was the evidence before the Board of Referees. In my opinion, in these circumstances, what occurred had no material bearing on the claimant's efficacy in his job performance and was not detrimental to the employer's interest. The incident was minor and insignificant and was not just cause for dismissal. The claimant alleges there were ulterior reasons for his dismissal and that the incident involving the use of foul language was just an excuse used by the employer to terminate him. It is not necessary for me to make a determination relative to this allegation. My finding is that the Board of Referees must have arrived at this decision without regard to the evidence before it.
I would allow the appeal and give the decision that the Board of Referees should have given. The decisions of the Board of Referees and the Commission are rescinded. I find the claimant was not terminated by reason of his own misconduct. The Commission is directed to pay the claimant the benefits heretofore denied him because of disqualification and increase the benefits paid to him from fifty to sixty percent of his average weekly insurable earnings.
Marshall Rothstein
UMPIRE
OTTWA
March 4, 1994