IN THE MATTER OF THE Employment Insurance Act
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IN THE MATTER OF a claim by Monique Laurin
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at
Cornwall, Ontario on December 4, 1997
D E C I S I O N
MacKAY J.:
[1] This is an appeal by the claimant Monique Laurin from a decision of the Board of Referees (the "Board") dated December 4, 1997 which upheld an Insurance Officer's decision disallowing the claimant's claim for benefits because the claimant lost her position due to her own misconduct. The appeal was heard at Ottawa, Ontario on November 18, 1998. The claimant represented herself at the hearing and Ms. Sigouin appeared on behalf of the Commission.
Background
[2] The claimant was employed as a clerk with Revenue Canada for some years prior to June 10, 1997, when she was suspended from her duties. She was dismissed permanently on June 20, 1997.
[3] Ms. Laurin was dismissed due to her involvement in a fraudulent scheme to claim, and receive payment for, unworked overtime hours as a basis for bonus payments. As a clerk, Ms. Laurin inputted the overtime hours at the direction of her supervisor, and eventually paid some "kick-backs", some portion of the payment received, to him. In a telephone conversation dated August 13, 1997, the claimant informed an Insurance Agent that a fellow employee, who was also dismissed for his involvement, had informed the union that several employees were engaging in the scheme and the union informed management. Management asked the participants to come forward and when Ms. Laurin admitted her involvement, she was dismissed, even though she had cooperated fully in the employer's investigation and had subsequently repaid all moneys wrongfully claimed and paid to her.
[4] In a telephone conversation the following day, the agent informed Ms. Laurin that her behaviour constituted willful misconduct and that she was not eligible for employment benefits. The agent confirmed this decision by a letter dated August 14, 1997.
[5] The claimant appealed the Insurance Officer's decision by a letter dated October 20, 1997. The claimant appealed outside of the statutory time limit because she assumed that an appeal would be unsuccessful until she was informed that her fellow employee, who had been fired for the same reasons as Ms. Laurin and denied benefits, had successfully appealed to the Board of Referees.
[6] In a decision dated December 12, 1997, the Board dismissed Ms. Laurin's appeal, finding that she lost her employment because of her own misconduct, stating in part:
"The Board is of the opinion that the Appellant received these payments and also was involved in entering false information for co-workers. It would be reasonable to know that such 'bonuses' are not paid. The Board feels that the Appellant did lose her job due to misconduct. "
[7] By a letter dated January 26, 1998, the claimant appeals the decision of the Board of Referees, claiming that its decision was based on an erroneous finding of fact made without regard to the material before it. She argued that at the Board hearing she had provided additional information to the Board that was not considered by it. In particular, Ms. Laurin noted that she was ordered, not merely "directed", by her supervisor to input, by computer entries, the overtime claims. Her supervisor was not computer literate and ordered her to make the entries. Furthermore, the claimant disputed the Board's failure to consider the Board's previous decision regarding her co-worker, and documents from a criminal investigation, which concluded that she should not be charged, I presume because her guilt for a criminal offence was not evident. In these circumstances, Ms. Laurin questioned the Board's finding that she should have known that the bonuses were illegitimate.
Analysis
[8] To begin, I note that the claimant relies upon paragraph 115(2)(c) of the Employment Insurance Act1 (the "Act") as her ground of appeal. It provides that:
...
(2) The only grounds of appeal are that
...
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[9] Previous CUB decisions have consistently held that the Board is in the best position to
determine findings of fact.2 In CUB 17309, 1 stated:
"It is not a sufficient basis for allowing an appeal that an umpire might have come to a different conclusion than the Board. The umpire must be satisfied that the Board's findings of fact are clearly not supported by the evidence before it."
In Roberts v. C E. I C.3, MacGuigan J.A. held that the proper test under what today is
paragraph 115(2)(c) is:
"...whether there was any evidence upon which the board of referees could have found as they did or whether they made any mistake of principle."
In CUB 14585, the Umpire interpreted the phrase "mistake of principle" to denote an error in law. I would add that failure to consider significant relevant evidence may also be a mistake of principle, and an error in law.
[10] Section 30 of the Act disqualifies a claimant from receiving benefits if he or she lost employment because of misconduct. While the Act does not define the term "misconduct", the Federal Court of Appeal, in Canada (Attorney General) v. Tucke4r, upheld the Umpire, who, in quoting from Christie, Employment Law in Canada (1980) at p. 36, referred to it thus:
Misconduct which renders [a] discharged employee ineligible for unemployment compensation, occurs when conduct of [the] employee evinces willful or wanton disregard of [the] employer's interest, as in deliberate violations, or disregard of standards of behaviour which [the] employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent...
Later in its judgment, the court expanded on the mental element that must be present, holding that a person is disqualified from benefits because of his or her misconduct if there exists "...a mental element of wilfulness, or conduct so reckless as to approach wilfulness." In Canada (Attorney General) v. Brisette5, that Court commented that for conduct to constitute misconduct, it must be "...wilful or deliberate or so reckless as to approach wilfulness...". Finally, in Canada (Attorney General) v. Secours6, Létourneau J.A. held that there need not be "wrongful intent" to justify a finding of misconduct under the Act. Rather, the act had to be made "'wilfully', i.e. consciously, deliberately or intentionally ...".
[11] The parties do not dispute that Ms. Laurin committed the wrongful acts which led to her dismissal. However, she urged that she was merely doing as she was ordered to do by her supervisor, in this as in other aspects of her work, and she questioned the fairness of concluding, in the circumstances, that she knew her behaviour was improper. Ms. Laurin argued before me that she believed that she was simply performing her employment duties, which included inputting data into the computer system. Furthermore, she entered the fraudulent claims only when instructed by her supervisor and when she did so she believed that his requests were legitimate and that he had the authority to arrange to pay bonuses. Thus Ms. Laurin argued that her understanding that the instructions of her supervisor were proper resulted in a lack of wrongful intent on her part. She also claimed that it was only when her supervisor asked her to share a bonus, for the first time, in November of 1996, and then made a second request in the following month, that she sensed the process was not appropriate.
[12] The Commission, referring to an internal affairs document, argued that Ms. Laurin knew that her behaviour was improper. Counsel relied on an internal affairs investigation report, and specifically the finding of a Senior Investigator that the claimant initially refused to input overtime hours on one occasion, then eventually complied with her supervisor's request, to submit that the evidence supported an inference that Ms. Laurin knew the process was improper.
[13] With respect, in my opinion review of the file reveals no evidence to support the Commission's submission that the claimant knew that her behaviour was improper prior to her supervisor requesting a kick-back. Rather, in previous written submissions and at the hearing before me, Ms. Laurin alleged that she did not realize that she was involved in a fraudulent scheme until her supervisor began asking for kick-backs.
[14] Thus, there is evidence that the claimant did not know, until her supervisor began demanding kick-backs, that her behaviour was improper. If that is so, she did not possess the willful element required in the circumstances for an act of misconduct which would preclude her from collecting employment benefits under section 30 of the Act. Ms. Laurin admits that, viewing the circumstances in retrospect, she disregarded the interests of her employer, but she did so because at the time she believed that she was complying with regular practice, as ordered by her supervisor. There is also some evidence in the file suggesting that Ms. Laurin was intimidated by her supervisor, who made unwanted advances toward her. This also undermines the willful nature or voluntariness of her inputting the computer data as her supervisor demanded on each occasion.
[15] In my opinion this evidence was before the Board of Referees but it made no reference to it in its decision. It did not address whether Ms. Laurin knew her actions constituted misconduct. It simply inferred that she should have been aware of this in its conclusion, that " [i]t would be reasonable to know that such 'bonuses' are not paid. " This conclusion is an inference drawn without specific reference to the evidence before the Board.
[16] Since the Board did not address the issue of wilfulness in its decision and did not consider that the relationship between Ms. Laurin and her supervisor was characterized by an imbalance of power, I conclude that the finding that the claimant lost her employment because of her misconduct was made without reference to important evidence before the Board.
[17] For these reasons, this appeal by the claimant is allowed and the Board's decision is set aside. The matter is referred back for reconsideration by a differently constituted Board to determine whether the claimant's actions demonstrated wilfulness in the sense of voluntary action on her part that intentionally was committed against the employer's interests, and thus constituted misconduct within s. 30 of the Act.
W. Andrew MacKay
Umpire
OTTAWA, Ontario
December 14, 1998