TRANSLATION
IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
CAROLE TROTTIER
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IN THE MATTER of an appeal to the Umpire by the Claimant
from the decision of a Board of Referees given at
Ste-Thérèse, Quebec, on November 1, 1994.
DECISION
TREMBLAY-LAMER J.:
The claimant is appealing from the unanimous decision of the Board of Referees which set aside the Commission's decision that she should be disqualified from benefit for having lost her employment by reason of her own misconduct.
The claimant had been employed by Garderie chez Tantie Inc. as a teacher since January 18, 1993. She was dismissed on May 25, 1994. The employer contends that she was dismissed for frequent lateness. The employer had even changed the claimant's work schedule to allow her to correct her attendance problem. The claimant, on the other hand, first claims that she was late only once or twice at most. She later admitted that she had received a warning concerning her attendance problem, but pointed out that the situation had improved until, on May 25, 1994, she failed to report for work. She called to say she would be late, but the employer told her not to come in because she was fired.
The claimant filed an initial claim for benefits. In a letter dated July 6, 1994, the claimant's employer was informed that the Commission had determined that she had not been dismissed by reason of her own misconduct. The Commission accepted the claimant's version, and allowed her entitlement to benefit. Dissatisfied with this decision, the employer brought on an appeal before the Board of Referees, which upheld its appeal.
In the Board's opinion, the claimant had not acted in the manner of a person "concerned to keep her employment given her repeated lateness." She knew that her "poor conduct was likely to cause prejudice to her employer, and she knew that she was risking the loss of her employment by acting in such manner."
Federal Court of Appeal case law shows that to disqualify a claimant from benefit pursuant to section 28(1) of the Unemployment Insurance Act 1 (the "Act") by reason of misconduct, the Commission must prove, based on a balance of probabilities, that the conduct complained of constitutes the breach of an express or implied duty included in the contract of employment of "such scope that its author could normally foresee that it would be likely to result in his dismissal." 2 in his dismissal. It must also include an element relating to state of mind. More specifically, the conduct complained of must have been voluntary or willful or at least of such a careless or negligent nature that it verges on willfulness. 3 Wrongful intent is not necessary. 4 It is sufficient that the claimant acted consciously, deliberately or intentionally.
Lastly, a causal tie must exist between the misconduct and the claimant's dismissal. 5 In fact, the misconduct must be the operative cause for the dismissal, and not merely an excuse to justify it.
In the case at bar, I find that the Board erred in determining the existence of misconduct within the meaning of the Act. The claimant did not demonstrate carelessness since the circumstances which caused her to be late, namely a power outage, were beyond her control. The claimant was unable to voluntarily decide not to disregard the effects of such lateness on her job performance.
Having regard to the circumstances, the claimant's appeal is allowed and the Board's decision is set aside.
Danièle Tremblay-Lamer
UMPIRE
OTTAWA, Ontario
September 3, 1997
2 Canada (Attorney General) v. Langlois (February 21, 1996), A-94-95 (F.C.A.).
3 Canada (Attorney General) v. Tucker [1986] 2 F.C. 329 (C.A.).
4 A.G. Canada v. Secours (1994), 179 N.R. 132 (F.C.A.).
5 Canada (Attorney General) v. Nolet (March 19, 1992), A-517-91 (C.F.A.).
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