CUB 53794

IN THE MATTER of an appeal by the claimant from a decision of a
Board of Referees given at Winnipeg, Manitoba, on the 19th day of September, 2001.

DECISION

The claimant had been denied benefits because he was suspended from his job due to misconduct.

The facts, although not clearly set out by the Board in its decision, is that the claimant had been employed with its employer from June 1998 to Apri1 2001. The company hosted a pizza, cake and coffee party for its employees to commemorate the closing of the department on its final day of operation. The claimant was there with two customer service managers, one of whom was his immediate superior. The supervisor gave her speech and during the socializing period she cut the cake and the claimant took his piece and pushed it against her face saying "I am sorry for any stress I may have caused you in the past".

It was apparently a joke which the supervisor did not take very well. The claimant attempted to apologize and waited outside the washroom but the supervisor was rather hurt by the incident and did not wish to speak with him. He then put an apology in writing so that his supervisor could be aware of his remorse.

The Board found that the employer stated that this was the first instance involving the claimant with respect to any misconduct. He had only received a few warnings with respect to attendance. The claimant reiterated to the Board how badly he felt after having done what he did. He advised the Board the other supervisor who was at the social affair said "I guess the joke didn't go well". The Board stated it had a very hard time reaching its decision in this matter considering that the employer had received many commendations with respect to the claimant. However, having reviewed the evidence the Board found that the claimant's actions were disrespectful, wilful, malicious and deliberate. His actions were in disregard of a standard of behaviour which the employer has a right to expect of its employees. For these reasons they dismissed his appeal.

The test of what constitutes misconduct has been set out by the Federal Court of Appeal in Tucker A-381-85 where the Court stated:

In order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effect of his or her actions would have on job performance.

The claimant relies on the decision in Tucker whereas the Commission relies on CUB 8555 where they refer to a judgement of Mr. Justice Haddad where he stated:

The claimant's conduct and his attitude was indeed bizarre in nature and I would not interfere with the Board of Referees characterization of that conduct as misconduct. His conduct amounted to a wilful disregard for the standard of behaviour which the employer has a right to expect of his employees.

Similarly they refer to CUB 50594, an incident of where the slapping of a teacher was the cause of loss of employment. The Commission found that the pushing of a piece of cake in the supervisor's face was a form of violence in the workplace and compared it with a slapping.

When one considers a case like this, one must consider all the circumstances. In this case the Board found that the claimant's actions were disrespectful, wilful, malicious and deliberate. I do not, however, find that there is any evidence that the claimant's actions were malicious. It is clear from the evidence that this was recognized as a practical joke and it was not precipitated by any malice or ill will. It was a practical joke which when performed runs the risk of having someone offended as against someone taking it in their stride.

In this particular case the supervisor did not take well to the incident even though the claimant immediately attempted to apologize for his actions which had obviously caused some complaint from the supervisor.

I also take note that this is the only incident during the claimant's employment which could be classed as an act of misconduct. It seems to me that the action itself was no doubt a joke which is clearly shown by the evidence and although it was a stupid thing to do, there is no evidence that there was any maliciousness or ill will. Had the recipient of the joke taken it in stride, then nothing would have come of it. The whole matter resolves around the offence taken by the supervisor.

Although I can appreciate her reaction, it is not a reaction which I feel would be universal.

It is my view that the Board of Referees were wrong in their finding that the actions of the claimant constituted misconduct. Although it can be said that he intended to do what he did, his intention was not one which was meant to be disrespectful or malicious or that would in any way hurt the person in receipt of it. As I have already stated, it is in my view an act of stupidity but not an act of misconduct which by definition from the jurisprudence would be classed as an act which was careless and wilful and negligent so that one could say that it was so negligent that the employee wilfully disregarded the effects his actions would have had on the job performance. It is my view, therefore, that the Board not having evidence before it which would constitute a malicious act as they did, I believe that the Board's decision is not supported by the evidence and should be classed as perverse under s. 115 of the Act.

For these reasons, the decision of the Commission and the Board of Referees is set aside and the claimant's appeal is allowed.