TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefit by
Jacques BRIAND
- and -
IN THE MATTER of an appeal to an Umpire by the claimant from the decision
of a Board of Referees given on November 26, 2001
at Val d'Or, Quebec.
GUY GOULARD, Umpire
The claimant is appealing from a majority decision by a Board of Referees allowing an appeal by the employer of the Commission's ruling that the claimant was entitled to Employment Insurance benefit because the grounds for his loss of employment do not constitute misconduct.
The facts in the docket can be summarized as follows. The claimant filed a claim for renewal of benefit on July 18, 2001 (Exhibit 2), reporting that he had been on sick leave from June 11 to July 1, 2001 and had been let go on July 15, 2001. The claimant submitted to the Commission a medical certificate (Exhibit 4) justifying his absence from duties between June 11 and July 1, 2001. He then took two weeks' vacation.
The reasons for the claimant's dismissal are contained in Exhibit 5, which reads as follows:
[TRANS] "This is further to our meetings of June 29 and July 3 concerning your conduct while on sick leave from June 11 to July 1 because of a cervicodorsal sprain.
In the event, the employer sought to confirm certain information to the effect that you had taken lessons to learn to ride a motorcycle and did in fact ride a yellow Suzuki 600 motorcycle while you were on sick leave from June 11 to July 1, 2001.
Given your admission that you did indeed ride a motorcycle, and since employers have the right to monitor absences from work and verify the reasons, we referred your case to a medical specialist, who confirms that the posture assumed for riding a motorcycle of this type is quite incompatible with an incapacitating cervicodorsal sprain.
Your reported behaviour is highly reprehensible. Honesty is essential to maintenance of the bond of trust inherent in employee/employer relations. In so doing, you used the funds of the income protection plan to further your own interests and lied to your employer about your motorcycle rides, their duration and their frequency, thus committing a serious offence verging on fraud.
For all these reasons, the employer was obliged to terminate your employment forthwith."
The Commission ruled that the reasons given for the claimant's dismissal did not amount to misconduct and agreed to renew his benefits. The Commission advised the employer of this ruling, and the latter appealed to a Board of Referees, which allowed the appeal in a majority decision.
The claimant appealed the Board's majority decision to the Umpire. This appeal was heard in Val d'Or, Quebec on September 26 and November 1, 2002. The claimant attended and was represented by Anie Beauchemin. Counsel for the employer was Thérèse Boisjoly, while the Commission was represented by Marie-Eve Sirois-Vaillancourt, who indicated that the Commission would not join the appeal.
The claimant argued that the majority on the Board had erred in basing their decision on an erroneous conclusion of fact, arrived at in a capricious or perverse manner and without regard for all the evidence put before them. He contends that the aggregate weight of the evidence is insufficient to establish that he had lost his employment because of his own misconduct. He asserts that the evidence shows that when he was dismissed he was on sick leave on the advice of his physician and that this advice had been corroborated by other physicians. He contends that, contrary to the employer's allegations, he never lied to the latter with respect to either the reasons for his sick leave or his activities while on sick leave.
The employer's position is that the evidence entirely supports the Board's majority decision since it showed that the claimant's actions had demonstrated that he could not have been suffering from back strain as certified by his physician and, further, that he had lied as to both his physical incapacity and his activities while on leave.
I shall deal with the issue under the following headings:
- the reasons for dismissal
- the Commission's ruling
- the basis for the majority decision
- the basis for the minority opinion
- the claimant's submissions
- the employer's submissions
- the claimant's rebuttal
- how the jurisprudence interprets misconduct
- analysis of the majority decision in the light of the Employment Insurance Act and the jurisprudence
- conclusion
Reasons for dismissal
In the letter of dismissal, the employer states that a medical specialist had been engaged and had concluded that the posture assumed (by the claimant) in riding a motorcycle of this type is wholly incompatible with an incapacitating cervicodorsal sprain. The employer therefore dismissed the claimant on the following grounds:
"Your reported behaviour is highly reprehensible. Honesty is essential to maintenance of the bond of trust inherent in employee/employer relations. In so doing, you used the funds of the income protection plan to further your own interests and lied to your employer about your motorcycle rides, their duration and their frequency, thus committing a serious offence verging on fraud." (Exhibit 5)
The employer accuses the claimant of having lied about his physical condition, thereby illegally taking advantage of the income protection scheme, and of having lied about his motorcycle rides, thus breaching the bond of trust between the claimant and the employer.
The Commission's ruling
The Commission's ruling is based on the following facts and the conclusion which it draws from them:
[TRANS] "- The claimant filed a medical certificate justifying his withdrawal from duties, so that his absence was medically justified for the period from June 11 to July 1, 2001, inclusive (Exhibit 4).
- The medical certificate is evidence of the claimant's incapacity in the absence of proof to the contrary. The employer referred the case to a medical specialist, who gave an opinion on the strength of the file and without examining the claimant. As there is no countervailing medical report or assessment of the claimant, at this point the Commission is not qualified to rule whether the claimant was capable of work or not and must deem it reasonable to assume that the evidence of incapacity still holds.
- The employer fired the claimant because of the breach of trust, on the view that the employee had used the funds of the income protection plan for his own ends and had lied to his employer, something which is characterized as a serious offence verging on fraud. Mr. Briand has admitted riding his motorcycle while off work on his physician's advice and did not conceal the fact when questioned on the matter; indeed, in his view he never lied to anyone, and he confirms that there was no medical counterevidence at the time these accusations were made. The Commission has no basis for ruling his behaviour misconduct, since there is no medical evidence suggesting that the claimant was "fit for work" at the time of these events and while he was collecting income protection benefits. It has therefore granted the claimant's application for benefit pursuant to subsection 30(1) of the Employment Insurance Act (Exhibit 9)."
Basis for the majority decision
The majority on the Board took cognizance of the following facts, as established by the evidence both in the docket and submitted at the hearing:
- On or about April 19, 2001, the claimant suffered an injury to his back occasioning three periods of sick leave, the third running from June 11 to July 1, 2001;
- the employer determined that during this last period of leave the claimant took driving lessons which were initially believed to be for operating heavy vehicles, but which were in fact for motorcycles;
- at a meeting with his employer, the claimant denied indulging in activities contrary to his physician's instructions;
- the employer hired a firm of investigators, which reported, after following the claimant, that while on leave he had taken theoretical classes on motorcycling and had ridden a motorcycle. The investigators reported that the claimant regularly rode his motorcycle within the municipal limits for half an hour to an hour at a time, though without detecting anything unusual in Mr. Briand's behaviour during these excursions.
- The employer hired a medical specialist to give an opinion on the compatibility of the investigators' observations and the diagnosis of cervicodorsal sprain made by Dr Claude Malenfant on June 11, 2001.
- The specialist, who did not examine the claimant, concluded in his report (Exhibit 13) and in his testimony that the claimant's actions were incompatible with the diagnosis because the posture assumed and the constraints imposed by this activity are such that they cannot be borne by a person afflicted with cervicodorsal sprain, especially someone for whom anti-inflammatories and physiotherapy have been prescribed.
- the majority on the Board also noted that the physician hired by the employer had also drawn attention to a feature of the medical evidence that raises serious questions: the first diagnosis following the events of April 2001, made by Dr Skuherska, is dorsalgia; the second, made by Dr Gérald Lapointe, is severe right-hand back sprain, while Dr Gilles Prévost decided on a lumbar sprain in late May 2001. A few weeks later, Dr Claude Malenfant diagnosed cervicodorsal sprain.
- The claimant admitted to the employer that he had made short rides on his motorcycle, but this had no effect on his symptoms or pain and had not been counterindicated while he was on leave, his physician having merely counselled against doing any heavy work for about three weeks, and it had never occurred to him that these rides might adversely affect his condition.
The majority decision reads, in part, as follows:
[TRANS] "The evidence submitted to the Board reveals that during his leave, which started on June 11, 2001, the claimant made several excursions on his motorcycle.
This evidence, which the claimant does not dispute, is inconsistent with the version given to the Commission when he reported, in Exhibit 8-1, that he had made only one ride lasting ten to fifteen minutes, and the preponderant thrust of the testimony heard is that these rides were incompatible with the claimant's state of health.
It would doubtless have been useful to hear Mr. Briand's physician on this matter, but in the absence of this testimony, the Board has no choice but to take cognizance of the evidence put before it.
It thus appears that the appellant has proven that the claimant indulged in certain activities incompatible with the claim that he was suffering from a cervicodorsal sprain.
From these proven facts, the Board can only speculate as to the conclusions to be drawn, but there is one that clearly accords with the employer's contention that the claimant falsely claimed to have been afflicted with an incapacitating condition.
The next question is therefore whether these actions or omissions constitute misconduct within the meaning of the Employment Insurance Act.
Given the facts as demonstrated before the Board, the members can readily understand why the employer felt abused by an employee who took time off and claimed income protection insurance on apparently spurious grounds. This situation was certainly exacerbated by Mr. Briand's earlier statements, in which, to all intents and purposes, he tried to downplay the extent and frequency of the actions alleged against him.
In the circumstances, the majority on the Board therefore concludes that the weight of the evidence demonstrates that Jacques Briand lost his employment with Uniboard as a result of his own misconduct, and the appeal is allowed accordingly."
Basis for the minority opinion
The dissenting member of the Board reviewed the evidence as he saw it and concluded as follows:
"I shall not reiterate all the testimony and facts on record, as these are explained in the decision. As I understand the facts, the employer, Mr. Langlois, interviewed the claimant on June 29, 2001 and tried, by posing various questions, to elicit an admission that he had indulged in activities incompatible with the physician's diagnosis. Failing to obtain satisfactory answers, he asked him to reconsider and to return with his union representative. At the second meeting, Mr. Briand admitted having ridden a motorcycle. The testimony of the parties, Mr. Langlois as employer and Mr. Ross and Mr. Briand on the employee's side, is divergent as to both how the meeting unfolded and what Mr. Briand said.
In testimony, the employer reported that he had earlier hired a firm to conduct covert surveillance from June 20 to 25, 2001. After the meetings with the claimant, the employer sent a videocassette to Dr Claude Archambault at the St Eustache industrial medicine clinic. The latter stated that riding a motorcycle was incompatible with the diagnosis of the physician who had seen Mr. Briand in early June 2001. In this case, the claimant had seen five (5) medical practitioners, including Dr Archambault on April 23, 2001, and all the diagnoses differed.
After hearing all the testimony, I lean toward the contention of the claimant's representative, who argues that Mr. Briand is not responsible for any of the diagnoses made by medical professionals and that he abided by their admonitions limiting his activities.
Indeed, as the undercover video shows, Mr. Briand rode slowly around the downtown area, alighted and walked around, then resumed his ride before returning home. Mr. Briand never thought that riding a motorcycle would cost him his job."
Claimant's submissions
Counsel for the claimant submitted that the majority on the Board had erred in its determination of the facts in accepting the testimony of Dr Claude Archambault, who, without examining the claimant and relying solely on the video showing the claimant riding a motorcycle, concluded that the latter, at the time the video was shot, was not behaving like someone who was suffering from a cervicodorsal sprain (Exhibit 13-3). Ms. Beauchemin drew attention to the following items in the evidence:
- On April 23, 2001, Dr Archambault had diagnosed the claimant as having right-hand back sprain following a snowmobile accident (Exhibit 16).
- The claimant then returned to work in May and took another week off on June 2 for lumbar sprain, returning to work in the week of June 9 and taking more time off later for cervicodorsal sprain (Exhibit 17).
- All these absences from work were backed up by medical reports. The absence starting on June 11, 2001 was supported by a medical attestation dated that day in which Dr Claude Malenfant certifies that having examined Mr. Briand, he had diagnosed cervicodorsal sprain and prescribed leave from work until July 1, 2001. Dr Malenfant stated in a note dated June 29, 2001 that Mr. Briand could resume his duties on July 2, 2001.
- The investigators had followed the claimant from June 20 to June 25, 2001, only a few days, according to Ms. Beauchemin, before Dr Malenfant's second examination, clearing Mr. Briand for return to work.
Ms. Beauchemin submits that Dr Archambault's testimony cannot challenge Dr Malenfant's diagnosis or the legitimacy of the claimant's sick leave. She argues that the Board had no medical evidence contradicting the diagnosis justifying the leave. She points out that the majority on the Board had declared that they could only speculate on the conclusions to be drawn, but were inclined to accept the employer's contention that the claimant had falsely claimed to be suffering from an incapacitating condition. She pointed out that the medical certificate attesting that the claimant was suffering from a cervicodorsal sprain when his leave began had not been contradicted by any medical evidence and that by the time of the video showing Mr. Briand performing actions which, according to Dr Archambault, were incompatible with an incapacitating cervicodorsal injury, the natural process of recovery would have been sufficiently advanced to lead Dr Archambault to his conclusions. She submits that this does not demonstrate bad faith on the part of the claimant and in no way vitiates the legitimacy of the sick leave.
Ms. Beauchemin asserts that the majority on the Board erred in their interpretation of Exhibit 8-1. She points out that, contrary to the majority's position, the claimant never said that he had made only one ride, but rather had reported making a few rides of short duration. This is borne out by Exhibit 8-1. Ms. Beauchemin likewise submits that the claimant was not lying when he said that he had done nothing contrary to his physician's instructions, believing at the time of the rides that this did not amount to heavy work, as proscribed by the doctor. He claimed that he did not think that rides such as he was taking would adversely affect his condition.
Ms. Beauchemin submits that the claimant's conduct can in no way be characterized as misconduct within the meaning of the Employment Insurance Act and as defined in the jurisprudence, which demands that there be an element of intent or deliberate action against the employer's interests.
Employer's submission
Counsel for the employer argued that the Board's majority decision was well founded in light of the evidence, which demonstrated that the claimant's actions during his sick leave constituted misconduct within the meaning of section 30(1) of the Employment Insurance Act and that the dismissal was directly linked to the claimant's misconduct.
Ms. Boisjoly recounted the chronology of the claimant's sick leave for the period from November 2000 to July 2001. In November 2000, Mr. Briand sustained an injury to his right hand in a work-related accident; while on leave as a result, he hurt his back while snowmobiling. Because of the hand injury, the claimant was told to work with his left hand only. Though he returned to work in May and early June 2001, he was prescribed further sick leave for complications from the snowmobile accident. This last leave ran from June 11 to July 1, 2001.
Ms. Boisjoly submits that the claimant's actions in snowmobiling while he could not use his right hand at work and riding a motorcycle while suffering from an incapacitating cervicodorsal sprain evince a flagrant carelessness and negligence on his part amounting to misconduct, in as much as he deliberately chose to indulge in activities incompatible with his state of health, thereby prolonging his periods of sick leave.
Ms. Boisjoly drew attention to Dr Archambault's testimony at the hearing (pages 80 et eq. in the transcript) in which the latter describes the demands imposed on the spine when motorcycling, a sport which he himself had practised and for which he had treated injuries. He states (page 82) that all three sections of the back are brought into play when riding a motorcycle. On page 84, he declares motorcycling to be counterindicated for someone suffering from back sprain, "especially cervicodorsal," and explains the basis for his opinion in detail. In his view (page 85), a person afflicted with such a sprain should not ride a motorcycle until at least two weeks after full recovery.
Dr Archambault said that if his colleagues had diagnosed lumbar and cervicodorsal sprains, it was because at the time of the respective examinations these conditions were present, but most likely caused by other provocative activities (page 93). He commented on the video of Mr. Briand riding a motorcycle, saying that all the latter's movements are normal and show no signs of sprain.
Ms. Boisjoly pointed out that the majority on the Board had weighed the evidence and concluded that on balance it showed that the claimant's motorcycle rides were incompatible with his state of health and that he had falsely claimed to be suffering from an incapacitating condition, so that his actions constituted misconduct within the meaning of the Act.
Ms. Boisjoly submits that the unrefuted evidence indicates that the claimant, while on sick leave for an injury for which rest, physiotherapy and anti-inflammatories had been prescribed, chose to ride a motorcycle on numerous occasions for periods at least twice exceeding an hour. She recalled that Dr Prévost had indicated in his report of May 28, 2001 (Exhibit 24-2 and pages 257 and 258 of the transcript) that the claimant should refrain from handling heavy objects, working in certain positions of the body and doing any heavy labour. She likewise pointed out that Dr Malenfant had declared the claimant to be suffering from a total incapacity from June 11 to July 1, 2001. In spite of this diagnosis and these admonitions, the claimant was observed, before his sick leave had run even half its course, riding a motorcycle, an activity which, according to Dr Archambault, was not only incompatible with the diagnosis, but counterindicated until two weeks after full recovery.
Ms. Boisjoly submits that a prudent and reasonable person would not have ridden a motorcycle while on sick leave lasting several months for back sprain without even consulting a physician, and that such behaviour is at the very least likely to compromise the healing process or prolong the incapacity unduly. She contends that the claimant had a duty to seek recovery as early as possible and that in behaving as he had done, he acted against his employer's interests, thereby committing the misconduct which led to his dismissal.
Ms. Boisjoly concludes by repeating that the Board's majority decision is well founded in the light of the evidence and recalls that the jurisprudence has established that Boards of Referees are masters of fact and that a Board's decision must stand unless it can be shown that it is based on an erroneous conclusion of fact arrived at in a capricious or arbitrary manner or without regard for all the evidence put before it.
Claimant's rebuttal
In rebuttal, Ms. Beauchemin submits that the Board should have taken into consideration the reasons for dismissal given in the letter of dismissal and found that the evidence relating to the initial period of sick leave in April 2001 following the accident of November 2000 was not relevant to the case. She reiterates that the claimant did not commit misconduct by riding a motorcycle because by that time he was well enough to do so, and there was no evidence to show that this had aggravated his condition or prolonged his incapacity.
How the jurisprudence interprets misconduct
Although the concept of misconduct is not defined in the Employment Insurance Act, a voluminous jurisprudence has grown up around it (Tucker (A-381-85), Brissette (A-1342-92), Secours (A-352-94), Langlois (A-94-95), Gauthier (A-6-98), Meunier (A-130-96), Eppel (A-3-95), and many decisions by Umpires). From this jurisprudence, we can distil the following principles:
- the alleged action must be of a voluntary or deliberate nature or must result from such carelessness or negligence as amounts to a deliberate act;
- there must be a causal link between the misconduct and the dismissal;
- the alleged action must constitute a breach of an obligation on the part of the claimant toward his/her employer deriving explicitly or implicitly from the work contract;
- the alleged behaviour need not be the fruit of culpable or fraudulent intent on the part of the claimant. It is sufficient that it be deliberate as defined above;
- the misconduct must be the reason for the dismissal;
- the onus of proving misconduct lies with the Commission or the employer and rests upon a balance of probabilities;
- Boards of Referees are competent to determine whether a claimant's actions or omissions in a given situation constitute misconduct within the meaning of the Act.
Analysis of the majority decision in the light of the Employment Insurance Act and the jurisprudence
The majority decision is based on a finding of fact to the effect that the claimant had been fired for misconduct. The gist of the decision can be gleaned from the following remarks excerpted from the decision (Exhibit 34-8):
- the appellant has presented prima facie evidence to the effect that the claimant indulged in certain activities incompatible with the fact of suffering from a cervicodorsal sprain;
- ... the Board can only speculate as to the conclusions to be drawn, but there is one that clearly accords with the employer's contention that the claimant falsely claimed to have been afflicted with an incapacitating condition;
- Given the facts as demonstrated before the Board, the members can readily understand why the employer felt abused by an employee who took time off and claimed income protection insurance on apparently spurious grounds.
The evidence indicates that the claimant's application was supported by a medical certificate issued by Dr Claude Malenfant, and this is not disputed. At the time of filing the claim for benefit and starting the benefit period, the uncontested evidence indicates that the claimant was suffering from cervicodorsal sprain.
As stated by the majority on the Board, they could only speculate as to the conclusions to be drawn from the evidence provided by the investigators and from Dr Archambault's testimony regarding the claimant's actions between June 20 and 25, 2001 when he rode a motorcycle.
It is entirely possible that the claimant's actions during his earlier periods of leave were not altogether wise, but there is no evidence that these actions were the cause of his subsequent leaves. The claimant had been able to resume a job which, according to the evidence, was physically demanding. Nor is there anything to suggest that the claimant was unfit to resume his duties on July 2, 2001, in line with Dr Malenfant's prognosis.
As mentioned in the reasons excerpted from the Commission's initial ruling, the decision to entitle the claimant to benefits was based on a finding that the medical evidence filed by the claimant justified his absence for the period from June 11 to July 1, 2001 and that there was no medical counterevidence.
With respect to the allegations that the claimant had lied to his employer as to the duration and frequency of his rides, the claimant had admitted taking a few short rides interspersed with stops to rest and walk around. The testimony of the investigator indicates that between June 20 and 25, 2001, the claimant took rides that may have exceeded an hour, but the investigator admits that he was unable to observe the entire duration of the rides. He also acknowledges that the claimant rode slowly in town and took frequent pauses. This evidence likewise tends to confirm that the claimant had described his rides more or less fairly.
As stated above, the jurisprudence has clearly established that, to constitute misconduct within the meaning of the Employment Insurance Act, an action must be voluntary or deliberate or else result from such carelessness or negligence as amounts to a deliberate act. As the claimant testified before the Board, he did not believe that his rides were contrary to his physician's advice. He told the Board (Exhibit 34-6) that he had kept within his physical limitations and that a distinction had to be made between incapacity for a physically demanding job and the fact of making a few motorcycle rides.
Conclusion
I therefore conclude that the Board of Referees erred in its decision. The majority neglected to take into consideration the evidence to the effect that the claimant's sick leave had been supported by uncontested medical evidence. It was thus wrong to conclude that the claimant had falsely claimed to be suffering from an incapacitating condition. Dr Malenfant had seen the claimant again on June 29, 2001 and pronounced him fit to resume work on July 2, 2001. The claimant had thus furnished uncontested proof of the legitimacy of his leave. The Board could not reject this proof without counterevidence.
The claimant's appeal is therefore allowed. The decision by the Board of Referees is rescinded, and the Commission's initial ruling is confirmed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
November 21, 2002