IN THE MATTER OF the EMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim by
JAMES GATES
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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 Winnipeg, Manitoba, on April 30, 1998.
D E C I S I O N
BLAIS J.
The claimant appeals the decision of the Board of Referees dismissing the appeal as the claimant lost his job due to his own misconduct.
By reason of his misconduct, the claimant was therefore disqualified from receiving unemployment insurance benefits.
I have reviewed the evidence that was put before the Board of Referees and the notes of the Commission's employee and of the claimant on what happened on January 8, 1998.
I understand that the Commission's employee Mr. or Mrs. B. Morton has phoned the personal manager and the store manager of Wal-Mart to get some information on March 24, 1998 and called again, the day after, March 25, 1998, the personal manager.
Mrs. Clara Campbell, personal manager at Wal-Mart, particularly mentioned:
However, there is no documentation of what actual words the claimant used and she only heard that second hand.
Obviously, there is few evidence of what happened on that day and it is contradictory.
We have on one hand what the claimant said and wrote, particularly a seven page letter signed by the claimant on March 17, 1998 and on the other hand, we do not even have a description of what happened with the assistant manager of Wal-Mart, who is the only witness of what happened on January 8, 1998.
I also understand that the claimant has not a history of misconducts or arguments with other employees or supervisors at Wal-Mart for the almost two year period of work for this employer.
I am not questioning the subjective appreciation of the employer for the existence of misconduct; nevertheless, I refer to the comments of Justice Marceau in Eppel (1995), 189 N.R. 191 (F.C.A.) at page 195:
It is possible to read the decision of this court in Canada (Attorney General v. Jewell, (1995), 175 N.R. 350 (FCA), as standing for the proposition that the subjective appreciation of the employer as to the existence of misconduct would be binding on the Commission and the Board of Referees. I think, however, that such an interpretation would go beyond what was the essence of the thinking of the members of the panel on that occasion.
1 also refer to the decision in Diane Choinière v. Canada Employment and Immigration Commission, (FCA) 1997, (CUB 28142):
However, it appears from the record that this so-called decisive "version" of the employer was limited to a statement by one of its representatives recorded by an officer of the Commission in a text of a few lines in which it is tersely stated that the employee had been dismissed because she had taken the day off without leave. Was it possible using solely this "version" of the facts, to conclude that the Commission had satisfied its obligation to prove that the section 28 conditions were fulfilled?
We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer's opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.
In the supplement record of claim written by the claimant on February 4, 1998, (exhibit 4-1), the claimant has clearly mentioned different elements leading to the fact that there was already a problem of relationship between the assistant manager and the manager; the claimant also gave a lot of information about the situation and the relationship between the members of the staff.
When I read the notes of the Commission's employees, I realized that they never asked questions about that and had narrowed their questions to one element based on second hand opinion.
I refer to the decision in Michel Perron (CUB 37118A) of Justice Tremblay-Lamer:
Federal Court of appeal precedents show that, in order to disqualify a claimant from receiving benefit under subsection 28(1) of the Unemployment Insurance Act1 (the Act) for reasons of misconduct, the Commission must show, beyond the balance of probabilities, that the action for which a claimant is faulted is a failure to fulfil [sic] an explicit or implicit requirement in the contract of employment "of such scope that its author should normally foresee that it would be likely to result in his dismissal.
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In this respect, I am not convinced that the actions for which the claimant was faulted could legitimately be considered to be misconduct within the meaning given to the expression in subsection 28(1) of the Act. In fact, the evidence shows that the claimant never acted without concern for the impact that his actions could have on his place of employment or did anything that he knew to be of such a nature that it would lead to his dismissal.
In Attorney General of Canada v. Michel Langlois, (FCA) (CUB 26597-26596), Justice Louis Pratte said:
While, therefore, as the cases hold, the board could not ask itself whether the dismissal of the respondents was justified, it should nevertheless have asked itself, as it did, whether the misconduct the respondents had engaged in was sufficiently serious as to constitute misconduct within the meaning of the Act.
I am of the opinion that the Commission did not discharge the burden of proving misconduct to the Board of Referees and that the Board erred in law in deciding that the claimant's actions for which he was faulted, constituted misconduct within the meaning given to the expression of subsection 28(1) of the Act and also of the recent jurisprudence.
I have carefully read the Board of Referees' decision and it is my opinion that the Board of Referees did not fulfill its obligations in that regard.
For all these reasons, the claimant's appeal is allowed and the Board's decision is set aside.
Pierre Blais
Umpire
OTTAWA, ONTARIO
December 18, 1998