CUB 50424

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given
on February 23, 2000, at Kelowna, British Columbia.

DECISION

Stacey McFadden appeals the decision of the Board of Referees ("the Board") made at Kelowna, British Columbia, on February 23, 2000 dismissing his appeal of a decision of the Employment Insurance Commission (the "Commission"). At issue is whether the Board made a reviewable error in upholding the Commission's decision to impose on the claimant an indefinite disqualification pursuant to sections 29 and 30 of the Employment Insurance Act ("the Act") for having lost his employment by reason of his own misconduct.

The claimant had been working as a "shear operator" at Monashee Manufacturing Corp. Ltd. ("the employer") until he injured himself and was no longer able to continue in that job. In September 1998, the claimant became the yardman/shipper-receiver for the employer, a job which required the claimant to operate fork-lifts on public roads (Exhibit 8) and which required the claimant to have a valid driver's licence.

The claimant did not have a valid driver's licence at that time. His driving record shows an extensive list of traffic violations and point accumulation which led to the cancellation of his licence in 1987 (Exhibits 9-5, 9-6, 9-7). The employer did not specifically ask the claimant if he had a valid driver's licence but says that "it is common sense that if you drive on public roads, you need a licence" (Exhibit 8). The claimant admits that he knew he needed a valid driver's licence to run the fork-lift (Exhibit 10). The employer discovered that the claimant did not have a valid driver's licence in July 1999 when it conducted a periodic check. The claimant then obtained a temporary three-month licence, at the end of which he again lost his licence because he was unable to pay his fines. The employer ended the claimant's employment on December 9, 1999, (Exhibit 3) as the claimant could not return to his position of yardman and because there were no other positions available for him (Exhibit 8).

An initial claim for benefits was established effective December 12, 1999 (Exhibit 2). In a letter dated December 30, 1999, the Commission rejected the claim as follows (Exhibit 5):

We are writing to inform you that we cannot pay you any regular benefits because you lost your job with Monashee Manufacturing on December 9, 1999 due to your misconduct.

The claimant appealed this decision to the Board of Referees. The following findings were made by the Board (Exhibit 13) :

The Board concludes that the appellant is the maker of his own misfortune. We appreciate he had many debts and financial problems but again, he was the creator of these. While he denies in his oral presentation that he knew he required a driver's licence, he acknowledges the need for one in exhibits 4 and 10. The employer gave the appellant an opportunity to retain his position if he held a current driver's licence.

While the appellant argues he wasn't fired he was "let go", because of his failure to have a driver's licence and the fact no other position was available to him, the essence of the matter is that he could have continued to work but because of his willful or deliberate actions, in the past, he could not retain his position. His failure to pay his fines represents carelessness and this imperiled his employment.

The Board concludes that the appellant lost his employment because of his failure to have a driver's licence as a result of his own misconduct.

For purposes of the present appeal, the claimant's representative submits that the Board "failed to allow for Natural Justice by neglecting to give due consideration to all mitigating factors in rendering their decision" (Exhibit 17-3). The "mitigating factors" are identified as follows:

1. The employer contended that the appellant lost his employment due to his misconduct by way of his inability to hold a valid driver's licence, which was a condition of his employment.

2. The Commission submitted that the Employer met the onus of proof within the meaning of the Act, by finding that the appellant's inability to hold a valid licence was in fact misconduct and the resulting loss of his employment.

3. The Board of Referees concluded that the appellant is "the maker of his own misfortune", they found that his personal financial difficulties "were wilful and deliberate" thus leading to his unemployment. "His failure to pay his fines represents carelessness and this imperilled his employment".

We submit that all of the above conclusions would be correct if the appellant was hired to be a forklift driver, he was not!

We contend that the appellant worked for this employer for 8 years, (Sept 16, 1991 - Dec 15, 1999), for the first seven years he worked as a shear operator and a drivers licence was not required or a condition of employment. The appellant then suffered a WCB injury and on his return he was not able to continue in his normal employment.

We contend that it was at this point that the Employer had a "Duty to Accommodate" under BC Provincial Legislation and the Workers Compensation Act.

There were no job requirements discussed with the appellant when he was offered Yard Work. If he was given a Job description and the requirements necessary, he would not have been eligible and the employer would have had to put him somewhere else or create a position under the duty to accommodate.

If all failed, the least the employer could have done was to assist the appellant to pay off his fines to secure a licence, or lay him off. It would clearly not fall under misconduct.

It was only after a year that the Employer addressed the licence issue with all employees. The appellant made reasonable efforts to meet the requirements, he paid as much as he could and was granted a three month interim licence. However on the limited income he was making, he could not pay down the balance owing to ICBC within three months.

It is our contention that the appellant did not lose his employment due to misconduct, he lost his employment solely because ofhis WCB injury and his Employer's inability to accommodate alternate employment. There were options available to the Employer, they could have assisted the appellant to secure his licence or retrained him in another job classification.

We submit that if the Board of Referees had given full consideration to all of the above mitigating circumstances and applied the Employment Insurance Act, they should have allowed the appeal. .

The claimant's representative cites CUBS 22082, 35952 - and - the Federal Court of Appeal decision in Fakhari (A-732-95) in support of the appeal.

At issue is whether the Board made a reviewable error that would warrant granting an appeal. Grounds of appeal to an Umpire are provided in subsection 115(2) of the Act:

The only grounds of appeal are that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous fording of fact that it made in a perverse or capricious manner or without regard for the material before it.

The substance of the appeal is that the Board made an error of law by finding misconduct even though the claimant accumulated fines and lost his licence prior to being hired as a yardman. Other grounds were raised, such as the failure to observe natural justice and the failure to take mitigating factors into account, the substantive argument relates to relationship between the "misconduct" and the claimant's employment.

The claimant argues that the Board failed to consider whether he lost his employment due to the shortcomings of the employer, and not due to his own misconduct. Had the employer initially told him that a valid driver's licence was required for the yard work position, the present problem would have been avoided as the claimant would have been placed in another position pursuant to the employer's "duty to accommodate". Alternatively, the employer could have assisted the claimant to pay off his fines, lay him off, or retrain him for another position. This argument cannot succeed for the simple reason that the claimant knew that he needed a driver's licence for the job to which he was assigned. The Board noted that though the claimant denied knowing that he required a driver's licence in his oral testimony, he acknowledged the need for one in Exhibits 4 and 10. In other words, the claimant worked for ten months in the position even though he knew he needed a valid driver's licence to run the fork-lift. Any option which was available had the employer inquired about his driver's licence, was equally available had he chosen to speak up. He must bear the consequences of failing to do so.

It is unclear as to whether the Board had any evidence before it as to the extent of the employer's "duty to accommodate" under provincial law. There was evidence, however, that the employer did accommodate the claimant. As a result of the claimant's injury, the employer and claimant discussed alternate duties for the claimant. They both agreed on the yardman position. On July 19, 1999, the employer discovered that the claimant had been working in the position without a valid driver's licence. He was given 10 days to obtain a licence (Exhibit 8). The employer stated that after the claimant lost his temporary licence, they did not have any other available positions so they let him go (Exhibit 8). Whatever else may be included in the duty to accommodate, it cannot extend to paying an individual's fines.

Paragraph 115(2)(c) of the Act requires that umpires not interfere with a decision unless they are convinced that the members of the Board arrived at their findings, in a clearly unreasonable way and without regard for the evidence presented to them. The standard of review was addressed by Nadon J. in CUB 28601:

In the appeal before me, it is very important to remember . . . the standard of review.. defined by section 80(c) of the Act [now 115(2)(c) of the Employment Insurance Act] . . . This is a very stringent section. I am not entitled to intervene unless it appears that the Board was so wrong in its reading of the facts that it appears perverse or capricious. This is a very onerous but necessary standard. The standard of review is further expanded upon by the case of The Attorney General of Canada v. McCarthy (5 August 1994), Doc. No. A-600-93 (Fed. C.A.), where it was stated at page 5 that:

In Roberts [(1984), 60 N.R. 349 (Fed. C.A.)] this Court also held that where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire's review is limited to considering and determining whether the view of the facts taken by the Board of Referees was reasonably open to them on the record. Put another way, the test is whether there was any evidence in the record upon which the Board of Referees could have found as they did without error in principle.

In CUB 45686, Marin J. stated:

We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable.

In the present case, there is nothing to suggest that the decision was made based on an erroneous finding of fact in a perverse or capricious manner without regard to the evidence before the Board. There is ample evidence to support the findings of fact and it is not for the Umpire, particularly in light of the applicable standard of review, to substitute his or her interpretation of the evidence over that of the Board: see CUB 28827.

The claimant suggests that an error of law was made when his fines and loss of licence were characterized as "misconduct" for purposes of the Act. While "misconduct" is not defined in the Act, the decision of F. Tucker (A-381-85) is commonly cited as providing the legal definition of that term:

In order to determine whether misconduct occurred in the present case, one must look to the general legal principles respecting that concept as it relates to employee-employer relationships. In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361:

"It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others . .. Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may get ill and be unable to fulfill their obligations and they may make mistakes under pressure or through inexperience."

Black's Law Dictionary (1979, 5th, Ed.) says of misconduct:

.. its synonyms are misdemeanour, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent..."

While the second excerpt above does not relate to the Canadian Unemployment Insurance Act, it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case.

Upon a finding misconduct, it must also be determined that there is a causal relationship
between the misconduct and the dismissal. As stated in the case of M. Brissette (A-1342-92):

[. . .] the fact that what is done might constitute misconduct under subsection 28(1) [now section 30 of the Employment Insurance Act] does not mean, however, that it necessarily results in disqualification from receiving unemployment insurance benefits. There must, first, be a causal relationship between the misconduct and the dismissal. It is not sufficient, in order for the disqualification to come into play, for the misconduct to be a mere excuse or pretext for the dismissal (see Raphaël Fuller, CUB 4503, February 4, 1976, Mahoney J.).

In a number of decisions, it has been found that the conduct of an employee in failing to keep a valid driver's licence when it was required by the job, constituted misconduct for purposes of the employment insurance scheme. In the Brissette case, supra, a truck driver had his licence suspended because he failed a breathalyzer test he took on the weekend, when he was off duty and at the wheel of his own car. The Court held:

The misconduct referred to in subsection 28(1) 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 [. . .].

[..]

The employee was required, as an essential, concrete condition of his employment, to hold a valid driver's licence. By losing it as a result of his wrongful act, he breached an express duty in the employment contract.

The Federal Court of Appeal has held that "misconduct" can apply to conduct by the employee that occurred prior to her employment. In the Robert Smith case (A-875-96), the claimant was charged with a drinking and driving offence prior to being hired as a truck driver. Desjardins J.A. made the following statement:

To claim that the misconduct occurred prior to the employment and, therefore, is not a cause for disqualification is too mechanical an application of Brissette - and - Nolet. It fails to appreciate that the timing factor does not stand alone. It is but another facet of the causal link which must exist between the misconduct and the loss of employment.

It is worth noting that McDonald J.A. applied a stricter test, requiring that the conduct in question breach an express provision of the contract:

Misconduct occurring before the employment relationship may only be considered when the punishment for this misconduct impacts on the employment relationship in such a way as to cause the employee to breach an express provision of his or her employment contract.

I find that the Board's characterization of pre-employment conduct as constituting misconduct resulting in his termination, is an error of law. An employee who manages to obtain employment despite the lack of a driver's licence cannot be said to have misconducted himself if, for reasons beyond his control, a driver's licence subsequently becomes necessary for his employment. In this case, the driver's licence became an issue because of a work related injury which was not the result of misconduct. To deny the claimant benefits because of a condition which did not prevent him from finding and keeping a job for eight years is simply punitive. Misconduct, as noted earlier, must be causally related to the loss of employment. The effective cause of the loss of employment was the industrial accident. It required the claimant to qualify for a job other than the one which he could do successfully without his driver's licence. His inability to do so is not misconduct.

This is not a case of a person who has a job which requires a driver's licence, who loses his/her licence, and thereby becomes disqualified from his/her job. In such a case, there may be cause to see the loss of the licence, even though it occurs in a non-work related context, as misconduct resulting in loss of employment. There is an air of voluntariness about behaviour which results in the loss of a licence, whether it is related to driving infractions or to abuse of alcohol. There is no aspect of voluntariness to an industrial accident. Misconduct implies voluntary behaviour. No voluntary behaviour leading to loss of employment has been shown here.

For these reasons, the appeal is allowed and the matter is returned to the Board of Referees for reconsideration, in accordance with these reasons.