CUB 57186

KRINDLE, Hon.

The commission appeals a finding of the board of referees that the claimant was not disentitled to benefits on the ground that he lost employment with Perimeter Concrete, on October 25, 2001, by reason of his own misconduct. An altercation took place between the claimant and a summer employee of Perimeter in which the claimant admittedly put his arm about the neck of the summer employee. The board of referees made the following findings of fact, having heard the evidence before it:

The Board notes that the claimant recognized the problems in his relationship with Mr. Wach. As a result, he addressed his concerns with his employer and asked that they make efforts to resolve the situation. He also asked Mr. Wach to void [sic] contact with him. Unfortunately, the employer did nothing to address the claimant's concerns and Mr. Wach continued to act in a way that provoked the claimant. Mr. Wach may have been particularly aggressive because his term had ended and it was his last day of work.

The Board is of the opinion that the employer should have immediately acted to resolve the ongoing problems between the claimant and his co-worker student. There is no evidence provided by the employer of their "Zero Tolerance Policy".

While this Board does not in any way condone the use of physical contact to resolve disputes, in reaching our decision we conclude there was insufficient evidence to support the claim of misconduct as defined by the Act and cases of law.

The commission says that the board erred in law in finding that any zero tolerance policy must be in writing in order for it to be enforceable. If that is what the board had ruled, the commission would be correct: CUB 40571. That is not what the board was holding. The board stated earlier in its reasons that the claimant in his testimony had gone "into all the details regarding other employees and their actions at work. He has indicated that no action was taken against these employees for certain infractions and yet he was released." In other words, the board had sworn evidence before it that challenged the existence of an enforced general zero tolerance policy. In the face of that evidence, the comment of the board that the employer had supplied nothing to back its assertion of the existence of such a general zero tolerance policy is simply sensible comment by a tribunal fixed with the duty of fact-finding.

It is a matter of clear law that, in order for conduct to amount to misconduct, the act complained of must have been willful or at least of such a careless or negligent nature that one could say that the employee willfully disregarded the effects his or her actions would have on job performance: Tucker A-381-85. In determining whether the appropriate mental element of wilfullness, as defined above, was proved it was open to the board of referees to look to the whole of the circumstances surrounding the altercation, including the provocation by the individual with whom the claimant was involved and it was open to the board to consider evidence of how the employer, in past, had reacted to altercations between employees.

There is a marked disparity between the description of the event given by the claimant, who was present at the time of the event, who gave testimony before the board, and the version according to the employer whose knowledge of the incident was necessarily based upon hearsay and who was not present before the board. It was open to the board to find that the incident in question was "not serious" based upon the evidence given by the claimant.

The commission argues that this was an assault and any assault, within the meaning of the Criminal Code, is necessarily serious and automatically justifies termination. An assault within the meaning of the Criminal Code includes any application of force to the person of another without the consent of that other. A pat on the back is technically an assault unless prior consent to that pat on the back is sought and obtained. What was before the board of referees was not whether this might technically have been an assault within the provisions of the Criminal Code but whether the conduct of the employee amounted to misconduct, with its attendant mental element.

The board of referees, in determining whether the complainant's conduct amounted to misconduct as that phrase has been defined by the cases, had not only the right but the responsibility to look to the inherent seriousness of the conduct and the frame of mind with which the claimant undertook that conduct, to determine whether the claimant was guilty of misconduct such as would disentitle him to benefits. The board of referees in this case had the benefit of seeing and hearing the witnesses. Clearly, to come to the decision which it did on the facts, the board must have accepted the testimony of the claimant.

It is interesting to note that in the employer's appeal, which was heard concurrently with that of the commission, the employer agreed that, on the facts as advanced by the claimant it was reasonable for the board to have held as it did. The employer did not appear before the board to advance a different version of the facts, although the employer's written position was before the board and is clearly referred to by the board in its reasons.

On the facts as found by the board, the decision of the board was one to which it could reasonably have come and it was open to the board, on the evidence, to find the facts as it did. That being the case, no grounds for appeal have been made out by the commission. The appeal is dismissed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
February 10, 2003