IN THE MATTER of the Employment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
DIANE SALTER
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IN THE MATTER of an appeal by the Claimant to an Umpire
from a decision by the Board of Referees given at
Edmonton, Alberta, on August 11th, 2000.
DECISION
Heard at Edmonton, Alberta, on January 30th , 2001.
W.J. HADDAD, Q.C., UMPIRE:
The issue in this appeal, filed by the claimant, is whether claimant lost her employment with the Little Red River Cree Nation ("the Band") on March 29, 2000, due to her misconduct.
The claimant filed for unemployment benefits following dismissal from her employment, and an initial claim for benefits was established effective March 26, 2000.
The claimant, a registered nurse, was employed by the Band as a Home Care Nurse and a nurse (NIC) employed by the federal government was the nurse in charge at Garden River, Alberta.
The only version of the facts regarding claimant's conduct is the forthright version offered by her to report a disagreement, a verbal exchange, and a physical scuffle which took place between the claimant and the NIC. As a consequence thereof the employer dismissed the claimant for her failure to observe rules of conduct under its Personnel Policy with respect to a serious instance of misconduct and the use of offensive language.
The Board's findings of fact, which reflects the evidence provided by the claimant, reads as follows:
"In response, the appellant admitted getting into a heated argument that resulted in a pushing match and raised voices. She states that the head nurse, a Federal employee, pushed first and finally she pushed back and called her a bitch. The appellant had no ever read or received a copy of the policies and procedures produced by her employer. She agrees that what occurred was not professional but they were in their offices and no one could hear or see them. She did not realize her job was on the line when she attended an interview about the incident (Exhibit 8).
The appellant wrote a letter of appeal to her employer giving a detailed account of all the circumstances surrounding the incident and asked for reconsideration / a chance to answer any charges made (Exhibit 5). It is indicated that the appellant has not received a response to date."
In its decision the Board gave an accurate account of principles to be observed in defining misconduct and then applied the following reasoning to dismiss the claimant's appeal:
"While the Board acknowledges that there were stressful circumstances and even some provocation, the Board believes that this does not detract from a reasonable inference that the appellant's actions were, at the least, of such a careless or negligent nature that one could say that she wilfully disregarded the effects her actions would have on her employment. It is apparent that the employer felt that the pushing and abusive language constituted a breach of acceptable conduct either expressed or implied and was sufficient to fit within their guidelines for misconduct whether communicated or not and resulted in the appellant being dismissed almost immediately after the occurrence."
It will be observed that the Board accepted and relied upon the employer's "guidelines" to determine misconduct within the concept of that term for the purposes of the Employment Insurance Act and in doing so the Board committed an error in law. At the same time the Board did acknowledge that there existed "stressful circumstances and provocation".
The construction of the term "misconduct" is a question of law. Its application in each case to the particular facts thereof is a question of fact. The conduct of an employee in each individual case has to be examined to determine whether the conduct in the circumstances thereof falls within the concept of "misconduct" to achieve the intent of the legislation. For an act to be characterized as misconduct it must be demonstrated that the conduct of an employee will affect the employee's job performance, or will be detrimental to the interests of the employer or will harm, irreparably, the employer-employee relationship.
The evidence shows, regarding the fracas of March 22, 2000, the claimant was not the aggressor. The NIC attacked first with a push in the course of the heat of an argument. Having been provoked claimant retaliated with a push and a verbal exclamation. It would have been the better part of discretion for the claimant not to have retaliated but human beings do not always behave rationally to ward off an assault - even a minor one. The use of profanity will in some circumstances be judged as misconduct and in other circumstances it will not be construed that way.
The circumstances disclose that the incident in which the claimant became involved was a private affair with another nurse. It occurred in a private office out of sight and hearing of other employees. The affair did not involve claimant's ability to perform her duties and there is no evidence to indicate that it was in some way detrimental to the interests of the employer. The claimant's remark to the NIC was unfortunate and although abusive in context it cannot be accorded the same classification as rude and loud streaks of profanity levelled by an employee to another, or others in the presence of co-employees and bystanders.
The claimant did not indulge in discourse and disagreement with an officer or employee of the employer and although claimant's conduct may have, from the employer's view, damaged the employer's relationship with the claimant with sufficient gravity that the employer felt compelled to dismiss her, the employer's perception of misconduct is not necessarily a perception that will fit the meaning of misconduct for the purposes of the Act. Moreover, notwithstanding the fact that claimant's retaliation and name calling can be labelled intentional the circumstances which created the incident was unusual fuelled by a measure of provocation. Claimant became a victim of circumstances.
The Board erred in law in accepting the employer's view of misconduct. Moreover, the Board erred in law in failing to consider the circumstances which created the incident and the lack of impact it had on employer and on the claimant's ability to perform her duties. When all the circumstances are taken into account claimant's conduct, by legal concepts, did not measure up to the meaning of misconduct as contemplated by the Act.
The decisions of the Board of Referees and of the Commission are hereby set aside and the appeal will be allowed.
W.J. Haddad
W.J. Haddad, Q.C. - Umpire
Dated at Edmonton, Alberta,
February 20th, 2001.