• Home >
  • Jurisprudence Library
  • CUB 26597


    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 the Umpire by the Employment and
    Immigration Commission from the decision of a Board of Referees
    given at Sept-Iles, Quebec on February 15, 1994.





    The Commission is appealing from the unanimous decision of the Board of Referees which reversed the insurance official’s decision that the claimants lost their employment by reason of their own misconduct within the meaning of sections 28 and 30.1 of the Act and 59.1(1) of the Regulations.

    Robert Edward, employed as a butcher since August 8, 1988, and Michel Langlois, employed in the bakery department for 12 years, filed a claim for benefit following their suspension with out pay pending investigation on November 20, 1993, which later changed into a dismissal on December 15, 1993.

    The claimants were accused by their employer of having conspired to denigrate its company’s meat department. The facts surrounding this accusation can be stated as follows. In the past, Mr. Edward and Mr. Langlois complained a number of times concerning a lack of freshness in the company’s meat department. Among other things, they complained that stale-dated meat was not being removed from the counter. After a meeting with the store manager, who at that time confided to Mr. Edward that clients had previously complained about an employee who had worked on Sunday and who had not disposed of meat, he was told that each employee on duty at the counter in the morning was responsible for disposing of stale-dated meat in the store’s grinder. Noting that the assistant manager of the meat department had not disposed of stale-dated meat as he should have on the morning of Monday, November 15, 1993, Mr. Edward, aided by Mr. Langlois, decided to take matters into their own hands.

    Mr. Edward took the packages of meat from the previous day and gave them to Mr. Langlois who put them in the bakery department refrigerator to show to the manager. However, the claimants decided to hand them over to a client, thinking this would have more of an impact and prompt their employer to act more quickly. On receiving the piece of meat kept in the bakery, the client, who had previously complained about the quality of products sold, began shouting in front of clients and employees that the company was selling spoiled and stale-dated meat. The claimants were then suspended pending an investigation and later 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, therefore, they were disqualified from regular benefits for the term of their 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 the action Mr. Edward took in using a client to get his message across to the company that a problem existed in the meat department. However, the Board of Referees is of the opinion that the employee, having worked for Provigo for five years, by such action, warranted discipline by his employer.
    The claimant did not act thinking he would be accused of misconduct but rather on finding no further means to make the employer understand that the rules were not being correctly followed.
    After reviewing the docket and hearing the claimant, the Board of Referees finds that the employee did not lose his employment by reason of his own misconduct, and finding no reason to doubt the claimant’s word, the Board of Referees allows the appeal.

    The Commission is now appealing from this decision to the Umpire on the ground that the Board of Referees, in acknowledging that the claimants could have been disciplined instead of dismissed, implicitly admits that the offence alleged against the claimants in the case at bar is misconduct. The Commission also submits that although the claimants contend they had nothing but the interest of clients in mind in taking their action, nevertheless, by such action, they discredited their employer in the eyes of customers and other employees.

    The Commission’s counsel submits that the case at bar is tainted by an error of law; that the Board of Referees asked itself the wrong question. The Commission’s interpretation of the Board of Referees’ decision is that the Board admits misconduct occurred but considers that discipline would have been more appropriate than dismissal. The Commission’s counsel submits that the Board of Referees has no jurisdiction in determining the severity of sanctions.

    The claimants’ attorneys asked whether a decision must be grounded on misconduct; if misconduct occurred, they contend that the onus of proof is on the Commission. In the letter informing the claimants of their dismissal, the employer mentions unacceptable behaviour toward clients. However, we note that no clients appeared to testify before the Board of Referees, and that the action taken by the claimants was intended precisely to protect the interests of clients. The letter also mentions that the two employees in question had acted in a manner to discredit the employer in the eyes of clients and in the eyes of their co-workers. However, the docket contains no evidence in this regard.

    The counsel submit that to prove misconduct, reference must be made to the material listed in the decision by Strayer J. in CUB 19859, George Holditch.

    The material in the record shows that the two claimants strongly wished that their employer, the Provigo supermarket in Port-Cartier, would follow the quality standards touted by Provigo Distribution Inc. and concerning which they had previously complained in the past to no avail. The evidence shows that Mr. Langlois and Mr. Edward removed the stale-dated meat from the counter and set it aside in a refrigerator in the bakery department to show it to the manager later. There is no evidence of a conspiracy on their part against the employer. Rather, it seems that the claimants were determined to correct a situation.

    Did the claimants demonstrate bad will toward the employer or their co-workers? I think not. In my opinion, their actions simply inconvenienced the employer. I cannot find that the claimants lost their employment by reason of misconduct.

    In its Observations to the Umpire, the Commission mentioned the following:

    According to the case law, to define misconduct specifically in terms of a wrongful act related strictly to the insured person’s duties would give it too restricted a meaning; misconduct refers generally to some ill-intentioned action affecting the employer-employee relationship and conflicting with the conscientious and proper performance of duties for which the employee was dismissed.
    Moreover, the Commission submits 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 that which constitutes the breach of a duty arising expressly or implicitly from the contract of employment.

    I am not satisfied that the claimants in the case at bar breached a duty inherent in their employment contract. In my opinion, their conduct was dictated by their sense of duty.

    Accordingly, the Commission’s appeal is dismissed.



    OTTAWA, Ontario
    November 14, 1994.