IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by Robert LESLIE
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IN THE MATTER OF an appeal to an Umpire by the Commission
from the decision of a Board of Referees given at Longueuil,
in the province of Quebec on April 19, 1994.
TREMBLAY-LAMER. J.
The Commission applies for rescission of the decision of the Board of Referees in the matter of Robert Leslie, claimant, made April 19, 1994. In their decision the referees overturned the decision of the Commission and unanimously allowed the claimant's appeal.
The claimant worked for the Ville St. Hubert Police as a constable from March 26, 1973 until his suspension and subsequent dismissal on December 3, 1993. The claimant made an initial claim for benefits on December 8, 1993. The Commission disallowed the claimant's claim on the grounds that he was suspended and dismissed because of his own misconduct. The claimant had been arrested for possession of narcotics for purpose of sale and trafficking while off-duty. The Commission's decision was supported by the statement of the Director of Police who said that even if the claimant was remorseful he would not be able to be reintegrated into the police force. The claimant appealed this decision to the Board of Referees, who decided that a municipal council resolution contradicted the statement of the police director by revealing that the claimant had been suspended without pay and not fired. As there was no additional information with regard to a confidential report, the referees allowed the appeal and overturned the decision of the Commission.
The Commission submits that the referees erred in that their decision is inconsistent with the jurisprudence.
Prior to the enactment of s.28.1 of the Unemployment Insurance Act, it was commonly held that suspension from employment due to misconduct amounted to dismissal for misconduct (CUBs, 26001, 22270 and 21645). However, this misconduct must be willful or at least show a willful disregard of the consequences of actions on job performance (Canada (A.G.) v. Tucker, [1986] 2 F.C. 329 (F.C.A.)). The Court of Appeal also recently held that misconduct away from the workplace can be sufficient to warrant dismissal for misconduct where the product of the misconduct breached an essential condition of employment. As stated by Létourneau J. in Canada (A.G.) v. Brissette1:
Moreover, we have no hesitation in concluding that what he did, which was to commit a summary conviction or indictable offence and resulted in a conviction under the Criminal Code, is misconduct within the meaning of subsection 28(1) of the Act. The misconduct referred to in that section may manifest itself in a violation of the law, of a regulation or of an ethical rule, and may mean that an essential condition of the employment ceases to be met, resulting in dismissal. Such a condition may be express or implied and may relate to a concrete or more abstract requirement.
The referees decision is superficial at best and really gives no indication, other than what is perceived to be contradictory evidence, as to why they overturned the decision of the Commission.
Whether he was dismissed or suspended without pay does not change the fact that it was his own conduct that placed himself in the position of being unable to perform his work.
As stated by Mahoney J. in CUB 74698:
[...] The claimant seems to be of the view that because he was suspended and not fired he had not lost his employment. In that he is mistaken. Entitlement to benefits under the Act arises upon interruption of earnings from employment. It follows that the suspension for employment without pay is to be adequate to a loss of employment for the purpose of Section 41 of the Act [...] When the Act speaks of loss of employment in the context of entitlement to benefit, it is really speaking of an interruption of earnings from employment. Whether as a result of complete separation, temporary layoff, suspension of whatever, the appropriate term may be and whatever the reason therefor, the essence of loss of employment for purposes of the Unemployment Insurance Act is an interruption of earnings from employment.
The jurisprudence suggests that the claimant has no hope. Being charged with criminal offences does not necessarily prove misconduct, nor does the dismissal of criminal charges prove that no misconduct occurred. In my view, however, the nature of the misconduct in this case is so deleterious to his occupation that the Commission's burden has been met. The public must be able to trust police officers. The Director of Police had no alternative but to suspend the claimant.
The referee's decision not only flew in the face of the jurisprudence it was also oblivious to the facts. The appeal of the Commission is allowed and the original decision of the Commission is reinstated.
Danièle Tremblay-Lamer
UMPIRE
MONTRÉAL (Québec)
This 24th day of September 1996