IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
KEVIN WALLACE
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
March 4, 1998, at Kingston, Ontario.
DECISION
MURDOCH, UMPIRE
This matter came on for hearing at Kingston, Ontario on October 21, 1998.
The claimant was represented by Ms. Grace Vaccarelli of Queen's Legal Aid. The Commission was represented by its counsel Mr. Darrell Kloeze.
The claimant is appealing an indefinite disqualification imposed pursuant to sections 29 and 30 of The Employment insurance Act for having lost his employment by reason of his own misconduct.
The claimant was employed by Burgess Wholesale Ltd. and lost his employment on November 5, 1997 on that date the claimant was working with a co-worker and an argument broke out between them. This argument resulted in the claimant pushing his co-worker an act for which he apologized later on.
The Commission concluded that the claimant's actions constituted misconduct within the meaning of the Act because employers should expect their employees to handle problems or incidents in a non-physical or potentially violent manner.
There was a statement in the file, Exhibit 9, from Eugene Guthro, a fellow employee, which reads as follows:
"I don't now exactly what to say, but I do know That Burgess's policy was to write up employees in the past but never has an employee been fired over one incident to my knowledge, and I've been an employee for almost four years. I personaly witnessed fights between other employees Martin George, John Thompson, Zach Amey, Jeff Hunter and Gordy ? have all been in fights, pushing matches or some other type of dispute even since Mr. Wallace has been fired. In these cases they were wrote up, sent home, or sent upstairs to cool off."
Similar evidence is found in the letter of Martin George dated March 15, 1998 addressed to Whom It May Concern. Regrettably this letter has not been marked as an exhibit but it reads as follows:
"I have worked with Burgess Wholesale on and off since 1989 and steadily since 1994. I have seen and experienced lots of bickering shoving, and fighting amongst fellow workers, and yet nobody was fired for it with the exception of Kevin Wallace All he was trying to do was get help, with his job. (you can only put up with hauling up wieght (sic) plus someone else's so long! I really think Kevin was made an example of and did not deserve it. There has been more fighting & bickering since he has left and no one has been reprimanded for it."
The claimant, in Exhibit 4-2, states as follows:
"Other employees were involved in similar circumstances. They were written up and sent home for remainder of shift. I asked for written warning or to be sent home, but was told I hadn't worked for company long enough."
The uncontroverted evidence appears to be that the type of conduct in which the claimant was involved would not result in dismissal from employment for misconduct. The Board of Referees was not referred to a decision of Canada (Attorney General) v. Langlois (A-94-95) in which Mr. Justice Pratte stated as follows:
"The misconduct referred to in Section 28(1) and which, like voluntarily leaving one's employment, may entail the disqualification from benefits of the claimant throughout his benefit period, pursuant to Section 30.1, is not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author would normally foresee that it would be likely to result in his dismissal." (my emphasis) (Section 28 of The Unemployment Insurance Act is now Section 30 of The Employment Insurance Act)
All of the evidence would appear to hold that an employee of Burgess Wholesale Ltd. who conducted himself in the manner of the claimant would not foresee that such conduct would result in his dismissal.
The Board of Referees erred in law in failing to refer to the applicable jurisprudence.
The appeal is allowed.
G. Murdoch
Umpire
PETERBOROUGH, Ontario
November 10th, 1998.