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  • CUB 26596


    IN THE MATTER OF the Unemployment Insurance Act

    - and -

    IN THE MATTER OF a claim for benefit by

    - and -

    IN THE MATTER OF an appeal to an Umpire by the Commission
    from the decision of a Board of Referees rendered
    on February 15, 1994 at Sept-Îles, Quebec




    ROULEAU, J.:

    The Commission is appealing the unanimous decision of the Board of Referees, which reversed the decision of the Insurance officer to the effect that the claimants lost their employment by reason of their own misconduct, by the terms of sections 28 and 30.1 of the Act and section 59.1(1) of the Regulations.

    Mr. Robert Edward, employed as a butcher since August 8, 1988, and Mr. Michel Langlois, employed in the bakery department for 12 years, filed a benefit claim after they were suspended without pay on November 20, 1993 pending an investigation. This suspension was subsequently converted to a dismissal, on December 15, 1993.

    The claimants were accused by their employer of having conspired to denigrate the meat department of its business. The facts pertaining to this accusation may be stated as follows. In the past, Mr. Edward and Mr. Langlois had repeatedly complained about the lack of freshness in the meat department of the business. In particular, they complained about the fact that the meat whose expiry date had passed was not removed from the counter. During a meeting with the store manager, the manager told Mr. Edward that he had already received complaints from customers about an employee who had worked on Sunday and had not thrown the meat away, and that each employee who looked after the counter in the morning had a responsibility to throw meat whose date had expired into the store's grinder. Mr. Edward noted that on Monday morning, November 15, 1993, the assistant meat manager had not thrown out the meat whose expiry date had passed, as he should have done. He then decided, with the help of Mr. Langlois, to take matters in hand.

    Mr. Edward took the packages of meat from the previous day and gave them to Mr. Langlois, who put them in a refrigerator of the pastry and bakery department, in order to show them to the manager. However, the claimants decided to give the packages to a customer, thinking that this would have more weight and that their employer would act more quickly. When the customer, who had previously complained about the quality of the products sold, received the piece of meat that had been kept in the bakery department, he began to exclaim to the employees and the other customers that the business was selling tainted meat, whose expiry date had passed. The claimants were then suspended pending an investigation, and were subsequently dismissed on the ground that they had acted in a manner to discredit their employer.

    The Commission notified the claimants that they had lost their employment by reason of their own misconduct, and that consequently, they were disqualified from receiving regular benefits for their entire benefit period.

    The claimants appealed this decision to the Board of Referees, which allowed their appeal in the following terms:

    The Board of Referees does not approve of what Mr. Edward did in using a customer to make the business understand that there was a problem in the meat department. However, the Board of Referees is of the opinion that the employee, who had been employed by Provigo for five years, by acting in this way gave his employer grounds for taking disciplinary action against him.
    The claimant did not act thinking that he would be accused of misconduct, but rather because he no longer had any other way of making his employer understand that the rules were not being properly followed.
    Having examined the record and heard the claimant, the Board of Referees is of the opinion that the employee did not lose his employment by reason of his own misconduct, and since it cannot doubt the claimant's word, the Board is allowing the appeal.

    The Commission is now appealing this decision to the Umpire on the ground that the Board of Referees, in recognizing that the claimants could have been subjected to disciplinary action rather than being dismissed, implicitly admitted that the offence for which the claimants were criticized in the case at bar was misconduct. The Commission also argues that although the claimants maintain that they only had the welfare of the customers in mind when they intervened, the fact remains that in acting as they did, the claimants discredited their employer in the eyes of the customers and of the other employees.

    Counsel for the Commission argues that there was, in this case, an error of law, that the Board of Referees asked itself the wrong question. The Commission's interpretation of the decision of the Board of Referees is that the Board admitted that there was misconduct, but deemed that a punishment was more appropriate than a dismissal. Counsel for the Commission states that the Board of Referees does not have jurisdiction in regard to the determination of the severity of sanctions.

    Counsel for the claimants questioned whether a decision should be based on misconduct, and it was their view that if there were misconduct, the Commission would have to assume the burden of proving it. In the letter informing the claimants of their dismissal, the employer mentioned unacceptable conduct towards customers. It should, however, be noted that no customer came forward to testify before the Board of Referees, and that the purpose of what the claimants did was precisely to protect the interests of customers. The letter also stated that the two employees concerned had acted in such a manner as to discredit the employer in the eyes of the customers and their fellow workers. However, the record does not contain any evidence to this effect.

    Counsel for the claimants also argue that in order to prove that there was misconduct, reference should be made to the items of evidence listed in the decision of Strayer J. in George Holditch, CUB 19859.

    The evidence on the record shows that the two claimants attached great importance to having their employer, the Provigo market of Port-Cartier, follow the quality standards on which Provigo Distribution Inc. prided itself, and that they had already complained in the past, to no effect. The evidence shows that Mr. Langlois and Mr. Edward removed meat whose expiry date had passed from the counter and set it aside in a refrigerator of the pastry and bakery department, in order to show it to the manager later. There is no evidence of a conspiracy on their part against the employer. In fact, it rather seems clear that the claimants were trying to rectify a situation.

    Did the claimants show ill will towards their employer or towards their fellow workers? I do not think so. In my opinion, their actions simply caused the employer an inconvenience. I cannot find that the claimants lost their employment because of misconduct.

    In its submissions to the Umpire, the Commission stated:

    According to the case law, specifically defining misconduct in terms of wrongdoing associated only with the insured's duties would give it too restricted a meaning. Misconduct refers generally to some malicious action affecting the employer-employee relationship, which is incompatible with the faithful and appropriate performance of the duties for which the employee was dismissed.
    Moreover, the Commission maintains that the Federal Court of Appeal, in C. Nolet (A-517-91), determined that the misconduct contemplated in section 28(1) of the Act is misconduct constituting failure to fulfil an obligation resulting expressly or implicitly from a work contract.

    I am not convinced that in the case at bar, the claimants failed to fulfil an obligation included in their work contract. In my opinion, their behaviour was dictated by a sense of duty.

    Consequently, the Commission's appeal is dismissed.

    "P. ROULEAU"


    Ottawa, Ontario
    November 14, 1994