IN THE MATTER OF the Unemployment Insurance Act;
- and -
IN THE MATTER OF an application to an umpire by Laurie J. MacDONALD, claimant, for review of the decision of the board of referees, rendered in Vancouver, B.C., on February 15, 1994.
CORRESPONDING FEDERAL COURT DECISION: A-152-96
DECISION
Muldoon J.
This is an application by the claimant, Laurie J. MacDonald, for rescission of the unanimous decision of the board of referees rendered in Vancouver, B.C., on February 15, 1994.
The officer found that pursuant to sections 28 and 30.1 of Unemployment Insurance Act, the claimant lost her job as an office accounting clerk with McRae's Septic Tank Service on August 25, 1993 because of her own misconduct. As a result, she was disqualified from receiving regular benefits from August 29, 1993. Once again the referees fall in line with the Commission and the employer. This is all too common and it makes one wonder who trains referees as to how to discharge their duties.
The referees unanimously decided the following:
Facts:
The appellant left her employment after five years with McRae's Septic Tank Service (Vancouver) Ltd. on 25 August 1993. The Commission states she left due to her own misconduct.
The employer stated the R.O.E. (exhibit 3.1) was completed by the appellant though the employer stated he did sign. Exhibit 7.1 is the correct R.O.E. The wage rate is different.
The employer (exhibits 6 & 11) states that the appellant was dismissed because she used the office phone to make long distance personal phone calls. She was in a position of trust and abused that trust.
The appellant admitted making the calls and said she was going to pay the money back.
The Commission investigated for any other motivation for dismissal and could not find support for any other motivation.
Findings:
The appellant stated that she did make the alleged phone calls, however when she returned from vacation August 2, 1993, Mr. McRae confronted her. The appellant stated that Mr. McRae said he would keep her on as long as she paid back the amount of her personal calls, some of which she stated were not hers.
The appellant stated three weeks later on August 26, 1993 Mr. McRae said he had to lay her off and asked her to complete her own R.O.E. as "laid off".
Some time later an amended R.O.E. was submitted indicating "dismissed".
Her letter of dismissal dated July 30, 1993 was not given to the appellant until August 25, 1993. The Board finds is regrettable that 3 weeks elapsed before this was done.
It is also, in our opinion, regrettable that if what the appellant has stated about a meeting on August 2, 1993 with Mr. McRae regarding the phone calls is true, there was this change of heart three weeks later.
The Board finds that, while there are some aspects not answered, the appellant did in fact make unauthorized personal phone calls without informing her employer or reimbursing her employer for such calls.
This is reprehensible and grounds for dismissal and established misconduct.
Decision: The appeal is dismissed.
Was it stealth on the claimant's part? Hardly. Everyone knows that the telephone bills will sooner or later arrive. She might have hoped that her employer would pay them, but when confronted, she offered to pay.
The Commission's observations are on file, dated May 13, 1994. They allege that the claimant was terminated for making unauthorized personal long distance calls on her employer's telephone on work time. The employer was on vacation when the employee called Germany. The claimant was on vacation when the bills were seen but was immediately confronted by upon her return. At that time the employer intended to fire the claimant and had prepared a written notice (ex. 19.5). The claimant admitted making the calls and promised to reimburse the employer (ex. 12) "At that time the employer accepted the claimant's explanation but continued to investigate and withdrew the termination notice." (p. 2) When this investigation revealed other long distance calls made without consent and on employer time the employer terminated the employment on August 25, 1993.
According to Canada v. Tucker, [1986] 2 F.C. 329 as cited in the recent case of AG. of Canada v. Secours, A-352-94, February 6, 1995, misconduct must be a reprehensible act or omission that has been made "wilfully", i.e. consciously, deliberately or intentionally, the jurisprudence surrounding misconduct. According to the decision of Joseph (A-636-85), the Court made the following statement in respect of proof of misconduct:
To prove misconduct by an employee it must be shown that he behaved in some way other than he should have. Accordingly, such an allegation is not proven simply by showing that the employer found his employee's conduct to be reprehensible, or charged him with misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour was reprehensible.
And in CUB 12786 Kesler, the Umpire writes:
Dismissal from employment is a heavy penalty for misuse of the telephones, but since neither the Board of referees nor the Umpire is entitled to confirm that penalty, or to restore the claimant's employment to him, the further focus of this review centres only upon the Commission's imposition of disqualification from benefits of four weeks on the claimant....
Whether the acts of an employee fall into the definition of misconduct is a question of fact which depends on all the circumstances of the case. In any case the onus to prove misconduct clearly rests with the Commission and where there is reasonable doubt, the issue must be resolved in favour of the claimant. Proof is made on a balance of probabilities.
In the present case there is ample evidence of probability which the board should have resolved in the favour of the claimant. The following circumstances would lead a reasonable board to question a finding of misconduct:
1. The claimant worked for five years without incident and with a positive appraisal record. The claimant was "laid-off" and replaced shortly thereafter by a relative of her employer.
2. The employer received a telephone bill while the claimant was on vacation and confronted her with it immediately. The claimant indicated her intention to repay her debt (as she had done previously when the employer had lent her money to fix her refrigerator) both parties indicated that the dispute had been resolved.
3. It was offensive for the employer to lay the claimant off three weeks later, to sign the appropriate release forms and then to hire a relative. It was even more unreasonable and suspect for the employer to decide three weeks after laying the claimant off that she was to be dismissed for misconduct. The employer played fast and loose with the claimant's employment rights.
As stated in Canada (AG.) v. Jewell (F.C/A), A-236-94:
The proper question asked by the Commission and the Board was whether the respondent lost his employment because of his own misconduct. The jurisprudence of this Court as to what constitutes misconduct is set out in Canada v. Bedell, (1985) 60 N.R. 116 (F.C/A), Canada (AG.) v. Tucker, [1986] 2 F.C. 329, and Canada v. Brissette, [1994] 1 F.C. 684. Collectively these cases stand for the proposition that if the necessary mental element is absent the conduct complained of will not be characterized as misconduct within the contemplation of section 12 of the Act.
On the other hand, the Umpire asked whether the respondent's misconduct constituted "just cause" for dismissal. In so doing he erred in light of an earlier decision of this Court. In Attorney General v. Canada, (1983) 46 N.R. 541 (F.C/A), it was held at p. 544:
In my view, the Board asked themselves the wrong question. The question they should have asked and answered was whether the claimant was dismissed for misconduct. Instead, they directed themselves to the question as to whether the attendant circumstances justified dismissal for misconduct. (For a similar view, see the judgment of Le Dain, J. in Davlut v. AG. of Canada, (1982) 46 N.R. 6).
The referees made a similar error in this case. It was not open to them to make the finding that "This conduct is reprehensible and grounds for dismissal and establishes misconduct." Instead the issue to be addressed was whether the employer dismissed her for her misconduct. The board must be satisfied that the misconduct was the reason for the dismissal and not merely an excuse for it. (Davlut v. AG. of Canada, (1982) 46 N.R. 6).
In the normal day to day affairs of employee/employer relations an abuse of telephone privilege (whether intentional or not) would warrant a warning or some form of first offence penalty. Canadian employment law is based on a system of graded punishment. While the employer may well have found the telephone incident offensive the fact that he did not dismiss the claimant at the material time, signed paper laying off the claimant only three weeks later to hire a relative, and subsequently dismissed the claimant three weeks following her lay off, raises a reasonable doubt that misconduct was used by the employer as an excuse for dismissal rather than a reason. This reasonable doubt ought to have been resolved in favour of the claimant.
What the referees ought to have noted is that any misconduct concerning unauthorized telephone use was set aside, if not forgiven by the employer when the claimant agreed to pay the charges, and she was then reinstated. It was after that agreement that the employer behaved so atrociously, changing his mind first to subject the claimant to lay-off, and next, to dismissal resurrecting for that purpose the already-dealt-with alleged misconduct. Reasonable and honourable employers do not misbehave in such a manner. The cause of it, suggested by the claimant, was that Mr. McRae's relative who replaced her, or other family members on the relative's behalf were nagging him to lay her low so that she would be out for good and not to be so soft on her.
Whether that allegation be so or not, and it is not entirely implausible, the employer cannot be permitted to go back on his bargain and once again visit past misconduct on her for the purpose of firing her. The CEIC cannot condone that kind of employer's misconduct by depriving the claimant of her benefits. The referees erred in so condoning. The revived misconduct was just an excuse for firing the claimant. The referees disregarded all this evidence.
This matter ought to be carefully examined by a differently constituted board of referees. Accordingly the referees' decision in case no.VO1313, dated February 15, 1994, is rescinded and the claimant's appeal is referred to a new, differently constituted board of referees. They should take note of these reasons.
F.C. Muldoon
Umpire
Ottawa, Ontario
December 8, 1995